ACT CIVIL & ADMINISTRATIVE TRIBUNAL

MEDICAL BOARD OF AUSTRALIA v HOCKING

and

HOCKING v MEDICAL BOARD OF AUSTRALIA

[2015] (Occupational Discipline) ACAT 44

OR 13/48, OR 14/31 & OR 14/04

Catchwords OR 13/48OR 14/31: OCCUPATIONAL DISCIPLINE – health practitioner

regulation – Matter 13/48 – child with dysplastic hip - whether debridement of acetabular rim of hip during arthroscopy – whether practitioner should have disclosed to patient and family restriction on registration - whether second document in format of post-operative report produced to correct errors evidenced in post-operative report on day of arthroscopy – Matter 14/31 - whether novel decision to treat child with platelet rich plasma should have been taken only after advice and approval – whether incorrect statement to parent that treatment used with success by colleague vitiated consent - whether conduct in both matters unsatisfactory professional conduct, unsatisfactory professional performance, or professional misconduct - penalty

CatchwordsOR 14/04: OCCUPATIONAL DISCIPLINE – health practitioner

regulation – appeal from decision to refuse to remove conditions on practitioner’s registration

Legislation cited: Health Act 1993 (ACT) ss 10, 54Health Practitioner Regulation National Law (ACT) ss 3, 5, 39-41, 126, 140, 146, 155-159, 160, 178, 182, 185, 193, 196, 199, 202, 225Health Practitioner Regulation National Law (ACT) Act 2010

Cases cited: Allinson v General Council of Medical Education and Registration [1894] 1 QB 750Bernadt v Medical Board of Australia [2013] WASCA 259 Briginshaw v Briginshaw (1938) 60 CLR 336

Comcare v Sahu-Khan (2007) 156 FCR 536Department of Health & Community Services v JWB & SMB (Marion’s Case) (1992) 175 CLR 218Felix v General Dental Council [1960] AC 704Hocking v Medical Board of Australia & Anor [2014] ACTSC 48Hocking and Medical Board of Australia [2015] ACAT 22Jemielita v Medical Board of Australia (Unreported, WASC, Library No 920584, 13 November 1992Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390Kozanoglu v The Pharmacy Board of Australia [2012] VSCA 295Maguire v Makaronis (1997) 188 CLR 449Marine Hull & Liability Insurance Co Ltd v Hurford (1985) 10 FCR 234 Marine Hull & Liability Insurance Co Ltd v Hurford & Anor (1986) 10 FCR 476Medical Board of Australia v Roberts [2014] WASAT 76O’Reilly v Law Society of New South Wales (1988) 24 NSWLR 204Pillai v Messiter (No 2) (1989) 16 NSWLR 97R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 Rogers v Whitaker (1992) 175 CLR 479Sullivan v Civil Aviation Safety Authority (2014) 64 AAR 120Vissenga v Medical Practitioners Board of Victoria [2004] VCAT 1044

Texts/Paperscited: Code of Conduct of The Royal Australasian College of Surgeons

Good Medical Practice: A Code of Conduct for Doctors in AustraliaBenali et al ‘Hip Subluxation as a Complication of Arthroscopic Debridement’ (2009) Journal of Arthroscopy 405JWT Byrd et al ‘Hip Arthroscopy in the Presence of Dysplasia’ (2003) 19 Arthroscopy: The Journal of Arthroscopic and Related Surgery 1055BG Domb et al ‘Arthroscopic Capsulotomy, Capsular Repair, and Capsular Plication of the Hip: Relation to Atraumatic Instability’ (2013) 29 Arthroscopy: The Journal of Arthroscopic and Relation Surgery 162Victor Ilizaliturri ‘Complications of Arthroscopic Femoracetabular Impingement Treatment: A Review’ (2009) 467 Clinical Orthopaedic and Related Research 760Michael SH Kain et al ‘Periacetabular Osteotomy After Failed Hip Arthroscopy for Labral Tears in Patients with Acetabular Dysplasia’ (2011) 93 Journal of Bone and Joint Surgery, Suppl 2: 57DK Matsuda ‘Case Report, Acute Iatrogenic Dislocation Following Hip Impingement Arthroscopic Surgery’ (2009) 25 Arthroscopy 400

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Omer Mei-Dan, MD, Mark McConkey, MK and Matthew Brick, MD ‘Catastrophic Failure of Hip Arthroscopy Due to Iatrogenic Instability: Can Partial Division of the Ligamentum Teres and Iliofemoral Ligament Cause Subluxation?’ (2012) 28 The Journal of Arthroscopic and Related Surgery 440-445Javad Parvizi et al ‘Arthroscopy for Labral Tears in Patients with Developmental Dysplasia of the Hip: A Cautionary Note’ (2009) 24 The Journal of Arthroplasty No 6 Suppl 1, 110

Tribunal: Ms E. Symons – Presidential MemberMs R. Creyke – Senior Member

Date of Orders: 19 June 2015Date of Reasons for Decision: 19 June 2015Corrigendum: 4 November 2015

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ACT CIVIL & ADMINISTRATIVE TRIBUNAL

OR 13/48, OR 14/31 & OR 14/04

BETWEEN:

RICHARD HOCKINGApplicant

AND:

MEDICAL BOARD OF AUSTRALIA Respondent

Tribunal: Ms E. Symons – Presidential MemberMs R. Creyke – Senior Member

Date: 4 November 2015

CORRIGENDUM

The Reasons for Decision handed down on 19 June 2015 in the matter of Medical Board of Australia v Hocking and Hocking v Medical Board of Australia (Occupational Discipline) [2015] ACAT 44 are amended as follows:

Page100, Paragraph 306 -

Delete : “Overall, the Tribunal finds that Dr Hocking behaved in a way that constituted unsatisfactory professional performance in relation to allegation 2.”

andsubstitute: “Overall, the Tribunal finds that Dr Hocking did not behave in a way that

constituted unsatisfactory professional performance in relation to allegation 2.”

………………………………..Ms L. Crebbin – General President

for and on behalf of the Tribunal

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ACT CIVIL & ADMINISTRATIVE TRIBUNAL OR 13/48 AND 14/31

BETWEEN:

MEDICAL BOARD OF AUSTRALIAApplicant

AND:

DR RICHARD HOCKINGRespondent

OR 14/04

BETWEEN:

DR RICHARD HOCKING

Applicant

AND:

MEDICAL BOARD OF AUSTRALIA

Respondent

TRIBUNAL: Ms E. Symons – Presidential MemberMs R. Creyke – Senior Member

DATE: 19 June 2015

Matter OR 13/48DECISIONS

1. As to allegation 1, the practitioner has behaved in a way that constitutes unsatisfactory professional performance by debriding Patient B’s acetabular rim while performing hip arthroscopy contrary to the patient’s medical condition.

2. As to allegation 2, the practitioner has behaved in a way that constitutes unsatisfactory professional performance by failing to disclose a restriction on his registration which had the potential to affect the treatment he was able to provide to the patient.

3. As to allegation 3, the practitioner has behaved in a way that constitutes unprofessional conduct by creating a second report of the hip arthroscopy some 3 or 4 months after the operation, in order to indicate that the symptoms suffered by the patient following hip arthroscopy were not due to the way he carried out the surgery.

4. After considering the decisions recorded at 1 to 3 above, the Tribunal decides to impose conditions on the practitioner’s registration as set out in 12 below.

Matter OR 14/31

DECISIONS

5. As to allegation 1(a), the practitioner has no case to answer and no further action is to be taken in relation to the injection of Platelet Rich Plasma (PRP) into Patient A’s left hip joint.

6. As to allegation 1(b), the practitioner has behaved in a way that constitutes unsatisfactory professional performance by failing to refer Patient A to another paediatric orthopaedic surgeon who was not restricted in carrying out surgery if necessary on Patient A.

7. As to allegation 2, the practitioner has no case to answer and no further action is to be taken in relation to the misrepresentation made to Patient A’s parents to the effect that an orthopaedic colleague in Melbourne had used PRP treatment for Perthes disease in children with success and that this colleague had endorsed the use of PRP treatment for Patient A.

8. As to allegation 3, the practitioner has no case to answer and no further action is to be taken in relation to obtaining informed consent from Patient A’s parents before administering the PRP treatment.

9. After considering the decisions recorded at 5 to 8 above, the Tribunal decides to impose conditions on the practitioner’s registration as set out in 12 below.

Matter OR 14/04

ORDERS

10. The appellable decision of the Medical Board of Australia dated 5 December 2013 is set aside and the decision set out in orders 11 and 12 below is substituted.

11. Conditions 1-3 imposed on the registration of the practitioner are set aside from the date of this order.

Matters OR 13/48, OR 14/31 and OR 14/04

ORDER

12. For the twelve months from the date of this order the following conditions are imposed on the practitioner’s registration.

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The practitioner must:

(i) discuss pre-operatively all complex cases (including complex hip and knee surgery cases) with suitably qualified surgeons. This should be followed up by a presentation of all post-operative outcomes of the same procedures during the post-operative period;

(ii) specifically highlight his arthroplasty audit, including the audit of review arthroplasty and including the National Joint Replacement Registry outcomes as part of his continuing professional development, audit and peer review process;

(iii) practise within a departmental setting in the public hospital environment and within a group session in the private sphere;

(iv) organize a theatre arrangement so that his major cases are performed in a location and time such that a second surgeon is available to join the surgery if the clinical complexity of the case requires ‘buddy’ support;

(v) on or before the 19 June 2016, provide a report together with supplementary evidence to the Medical Board of Australia on his compliance with the terms of this condition.

………………………………..Ms E. Symons – Presidential Member

For and on behalf of the Tribunal

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Table of ContentsOverview...................................................................................................................................5Background...............................................................................................................................6General law to be applied.........................................................................................................8Onus of Proof............................................................................................................................9Standards of conduct...............................................................................................................11

Matter: OR 13/48 - Patient B and Dr Hocking’s Behaviour.............................................12Joint Report Patient B - Dr Cairns, provided 16 March 2015................................................17Allegation 1: Expert evidence.................................................................................................21Dr Young................................................................................................................................21Professor Cundy......................................................................................................................22Professor Smith.......................................................................................................................27Dr McNicol.............................................................................................................................32Dr Hocking..............................................................................................................................33Allegation 1: Summary of evidence.......................................................................................39Allegation 1: Conclusion........................................................................................................49Allegation 2: Failing to disclose restrictions on registration..................................................49Allegation 2: Conclusion.......................................................................................................55Allegation 3: Creation of second operation report..................................................................56Allegation 3: Standards for records........................................................................................64Allegation 3: Conclusion........................................................................................................65OR 13/48: Specific law to be applied.....................................................................................67Findings OR 13/48..................................................................................................................76Conclusion OR 13/48..............................................................................................................80

Matter: OR 14/31 – Patient A and Dr Hocking’s Behaviour............................................81Background.............................................................................................................................81Allegation 1: (a) Use of PRP..................................................................................................87Allegation 1: (a) Conclusion...................................................................................................89Allegation 1: (b) Failure to refer Patient A to another surgeon..............................................89Allegation 1: (b) Conclusion...................................................................................................93Allegation 2: Misrepresentation to parents of Patient A.........................................................93Allegation 2: Conclusion........................................................................................................96Allegation 3: Informed consent.............................................................................................96Allegation 3: Conclusion.......................................................................................................98Findings...................................................................................................................................98Conclusion OR 14/31............................................................................................................101

Matter OR 14/04 – Appeal Conditions..............................................................................102Background...........................................................................................................................102OR 14/04: Law to be applied................................................................................................106Conclusion: OR 14/04...........................................................................................................118

Consequences of Findings in OR 13/48 and OR 14/31........................................................119

COSTS..................................................................................................................................119

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REASONS FOR DECISION

Overview

1. There are three applications before the ACT Civil and Administrative Tribunal:

(a) Medical Board of Australia v Dr Richard Hocking (OR48 of 2013)

(Patient B matter);

(b) Medical Board of Australia v Dr Richard Hocking (OR31 of 2014)

(Patient A matter); and

(c) Dr Richard Hocking v Medical Board of Australia (OR4 of 2014)

(Conditions appeal).

2. The matters are dealt with separately in these reasons. The first two are in the

nature of disciplinary proceedings brought by the Medical Board of Australia

(the Board) against Dr Hocking. In the third matter, Dr Hocking is appealing

against a decision of the Board which imposed certain conditions on his

registration.

3. The parties agreed that one of those conditions (condition 2), relating to

retraining, was satisfied. It was also agreed that the conditions appeal should be

considered after the applications dealing with Patient A and Patient B were

determined. Counsel for the Board submitted:

If it were the case that Dr Hocking were completely vindicated by the tribunal on both of those matters, then in the absence of any material change of circumstances it would follow that the restriction in condition 1 would be lifted - all other things being equal - if, on the other hand he was not, it would then need to be reviewed to determine (a) how significant are the findings in those matters if the findings are made and (b) whether or not the penalty the tribunal decides to impose ... in effect supersedes any conditions1.

4. The applications were heard by the ACT Civil and Administrative Tribunal on

16, 18-20, 23-24, and 26-27 March 2015. Where appropriate the relevant

evidence appears under the ‘Consideration’ section for each matter.

1 Transcript of proceedings 16 March 2015 at page 10 lines 5 - 12

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5. In the reasons following, a reference to ‘ACAT’ or ‘tribunal’ refers to the ACT

Civil and Administrative Tribunal generally, whereas ‘Tribunal’ refers to the

members hearing these matters.

6. The reasons below explain why the Tribunal has reached its decisions in these

matters.

Background

7. Dr Hocking is a registered medical practitioner. He qualified as a doctor on

6 January 1997. Thereafter he trained as a specialist orthopaedic surgeon

commencing practice in 2002. In 2006 he was admitted as a Fellow of the Royal

Australian College of Surgeons. He specialised in adult and paediatric hip and

pelvic surgery. In 2008 he took over the practice of Dr David McNicol, an adult

and paediatric orthopaedic surgeon, situated in Woden. He has since sold that

practice and from mid-2014 has not worked in Canberra.

8. The following facts are agreed, in some instances with corrections or additions

by the Australian Health Practitioner Regulation Agency (AHPRA) and by

Dr Hocking. The facts reflect the claims made by Dr Hocking and the Board’s

responses. The text has been edited by the Tribunal without changing the

substance of the contentions and the responses:

(a) on 24 March 2011, practitioners from the Sydney Children’s Hospital

wrote to AHPRA regarding Dr Hocking’s treatment of two paediatric

patients (Sydney Children’s Hospital notification);

(b) on 12 April 2011, Professor Paul Smith, a Canberra-based orthopaedic

and trauma surgeon, and Professor of Surgery at ANU Medical School,

lodged a notification with AHPRA regarding Dr Hocking’s treatment of

four patients (Professor Smith notification). He attached two letters

describing the events the subject of the notification, namely his own letter

dated 12 April 2011 and a letter from Dr Stephen Bradshaw dated

20 March 2011;

(c) on 2 May 2011, the ACT Board of the Medical Board of Australia met to

consider the Sydney Children’s Hospital notification and the Professor

Smith notification and decided to investigate the notifications pursuant to

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the Health Practitioner Regulation National Law (ACT) (National Law)

for the reasons set out in minutes of the Board dated 3 May 2011. On

5 May 2011 Dr Hocking provided an undertaking to the effect that he

would perform no elective open hip surgery and would involve a senior

colleague in the management of major pelvic injuries, pending completion

of the investigation. On 21 June 2012, after the investigation, the Board

imposed six conditions on the applicant’s registration to practise medicine

(Conditions 1-6.) The Board notified Dr Hocking of these conditions on

26 June 2012;

(d) on 26 February 2013, Dr Hocking provided submissions to the Board

dated 15 and 22 February 2013, including reports from supervisors, and

requested that Conditions 1-6 be lifted. The Board met on

28 February 2013 to review Conditions 1 to 6 and to decide whether to

substitute Conditions 1 to 3 (proposed action). The Board notified

Dr Hocking by letter of 1 March 2013 of the proposed action.

Dr Hocking’s solicitor made written submissions to the Board in respect

of the proposed action by letter of 20 March 2013;

(e) on 16 April 2013, Dr Hocking appeared before the Board and made oral

submissions regarding the proposed action;

(f) on 8 May 2013, the Board wrote to Dr Hocking and advised that it had

decided to replace Conditions 1-6 with three conditions (Conditions 1-3).

Condition 3 stated that the Board would review Conditions 1-3 within six

months of notice of their imposition, that is, after a period ending on 8

November 2013;

(g) on 29 November 2013, Dr Hocking provided submissions to the Board,

including reports from his supervisors, Dr Michael Gillespie and Dr David

Young, and requested that Conditions 1-3 be lifted. The Board met on

5 December 2013 to review Conditions 1 to 3; and

(h) on 2 January 2014, the Board wrote to Dr Hocking and stated that it had

considered the reports from his supervisors, as well as the submissions

made on 29 November 2013. The Board decided, in accordance with

section 126(3)(a) of the National Law, that Conditions 1-3 should not be

7

removed but should be imposed again and reviewed after a further period

of six months.

Other facts

9. In July 2012, Dr Hocking commenced a period of retraining and supervision.

His supervisors were Dr David Young, a leading orthopaedic surgeon with a

practice in Melbourne, Dr Michael Gillespie, a consultant orthopaedic surgeon,

and Dr Peter Morris, an orthopaedic surgeon, both in Canberra. Dr Hocking

made regular visits to Melbourne to consult with and to observe Dr Young’s

work. Dr David Hardman, a Canberra-based consultant vascular surgeon, was

also appointed as a mentor to Dr Hocking.

General law to be applied

10. The Tribunal is to make its decisions in accordance with the Health Practitioner

Regulation National Law (ACT) Act 2010 (National Law), the legislation which

adopted, subject to certain modifications, the National Law as applying in the

ACT.2

11. Section 196 in Division 12 of the National Law sets out the decisions the

tribunal may make about a registered health practitioner. Section 198 in

Division 12 of the National Law provides that Division 12 of the National Law

applies despite any provision to the contrary of the Act that establishes the

responsible tribunal but does not otherwise limit that Act.

12. In making its decisions, the Tribunal is also to take account of the objectives

and guiding principles underpinning the National Law. In particular, it must

consider the following objectives: that the law is ‘to provide for the protection

of the public by ensuring that only health practitioners who are suitably trained

and qualified to practise in a competent and ethical manner are registered’; and

that ‘restrictions on the practice of a health profession are to be imposed under

the scheme only if it is necessary to ensure health services are provided safely

and are of an appropriate quality’.3

2 Hocking v Medical Board of Australia [2015] ACAT 22 at [8]-[9] 3 Section 3(3)(c)

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13. The first two matters relate to notifications concerning the treatment by

Dr Hocking of two patients, Patient A and Patient B, both children. The relevant

item of ‘notifiable conduct’ in relation to Patient A and Patient B is that

Dr Hocking “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”.4

14. If findings are made adverse to Dr Hocking, the Tribunal’s role is to consider

liability for the breaches leading to those notifications, and whether to impose a

penalty.

15. The relevant matters are:

(a) OR 13/48: an application by the Board dated 11 December 2013 for de-

registration or other penalty in relation to an allegation that Dr Hocking

had engaged in conduct that constituted professional misconduct,

unprofessional conduct or unsatisfactory professional performance

concerning his treatment of Patient A; and

(b) OR 14/31: an application by the Board that a penalty be imposed on

Dr Hocking in relation to an allegation that Dr Hocking had engaged in

conduct that constituted professional misconduct or unprofessional

conduct or unsatisfactory professional performance concerning his

treatment of Patient B.

Onus of Proof

16. It is accepted in professional disciplinary proceedings that the Board bears the

onus of proving matters, and that the standard of proof in civil matters is the

balance of probabilities. In disciplinary hearings of this kind, that is often

expressed as requiring comfortable satisfaction or an ‘actual persuasion’.5

17. The Board, in its closing submission, submitted that the Tribunal should be

‘comfortably satisfied to the Briginshaw standard’ that its charges were made

4 Section 140(d) of the National Law5 O’Reilly v Law Society of New South Wales (1988) 24 NSWLR 204

9

out. Counsel for Dr Hocking reminded the Tribunal that its findings require an

‘actual persuasion, and not merely a mechanical comparison of probabilities’.6

18. The Tribunal accepts that the rules of evidence ‘are founded upon principles of

common sense, reliability and fairness’7 and, to that extent the principles arising

from the decision in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362

per Dixon J should apply. In so saying, the Tribunal is indicating its

appreciation of ‘the need not lightly to reach conclusions carrying grave

consequences’.8

19. As Logan J observed in Sullivan at [8]:

… the Tribunal’s conclusions must be based on logically probative material [and] where that conclusion may have grave consequences for a party to the review … it would not lightly be reached and this factor intrudes on what the Tribunal should regard as probative in the making of a reasonable decision.

20. The Tribunal also notes, in the context of the reference to the ‘Briginshaw

standard’, that in Sullivan, the Full Court of the Federal Court rejected a

submission that the AAT had made an error of law in failing to adhere to the

Briginshaw principle and confirmed that tribunals are not bound to apply the

rules or principles of evidence, such as those arising in Briginshaw.9 As the

majority in Sullivan observed, such a principle:

… would be inconsistent with the well-entrenched acceptance of the proposition that curial proceedings are inherently different from the tasks entrusted to decision-making by administrative tribunals and the Administrative Appeals Tribunal in particular; and would be inconsistent with the flexibility of procedure deliberately entrusted by the Legislature to the Tribunal.10

21. That statement of principle is consistent with the recent observation of the High

Court in Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 at 396

per French CJ:

6 Dr Hocking’s Closing Submissions [4.35]7 Sullivan v Civil Aviation Safety Authority (2014) 64 AAR 120 at [93]

per Flick and Perry JJ8 Sullivan, per Logan J at [19]9 Sullivan, at [104], [114] per Flick and Perry JJ (Logan J agreeing

with the outcome). 10 At [114]

10

The exercise of the Tribunal's freedom from the rules of evidence should be subject to the cautionary observation of Evatt J in R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott [(1933) 50 CLR 228] that those rules “represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth”. It is a method not to be set aside in favour of methods of inquiry which necessarily advantage one party and disadvantage another. On the other hand, that caution is not a mandate for allowing the rules of evidence, excluded by statute, to “creep back through a domestic procedural rule”.

Standards of conduct

22. The issues are whether in relation to his treatment of Patient A and Patient B,

Dr Hocking behaved in a way that constituted ‘unsatisfactory professional

performance’, ‘unprofessional conduct’, or ‘professional misconduct’, as

defined in section 5 of the National Law.11 If the Tribunal finds breaches of one,

some, or all of those standards, the Tribunal is able to impose a penalty.12

23. There is limited documentary indication of what are those standards. In that

context, the Tribunal notes the statutory authority for the Board to develop

codes and guidelines which are to be used by bodies such as the Tribunal in

disciplinary proceedings.13 It would be helpful if detailed standards were to be

developed by the Board.

24. The Tribunal was referred to the Code of Conduct of the Royal Australasian

College of Surgeons (surgeons’ Code) and Good Medical Practice: A Code of

Conduct for Doctors in Australia (doctors’ Code) for relevant standards. The

two Codes profess to be ‘the standards of ethical and professional conduct

expected of doctors by their professional peers and the community (doctors’

Code, 1.1) or ‘defines the professional behaviour of surgeons’ (surgeons’ Code,

2). However, they do not identify with specificity the standards which are

reasonably to be expected of someone with five or six years’ experience and an

equivalent level of training to Dr Hocking.

11 Section 196(1)(b) of the National Law12 Section 196(2) of the National Law13 Sections 39-41 of the National Law

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Matter: OR 13/48 - Patient B and Dr Hocking’s Behaviour

Facts

25. Patient B was born with a congenital hip dysplasia,14 that is, dislocation or

misalignment of her left hip. In 1999, on arrival in Australia, age two, she was

diagnosed with the condition and in 2000 underwent treatments to restore her

hip to its proper location. She was again treated for hip problems when she was

four. When the family moved to Canberra, Patient B came under the care of

Dr McNicol. Her care moved to Dr Hocking when he took over the practice of

Dr McNicol in 2008. There was medical evidence that her hip dysplasia was in

the moderate range at level 1 using the Crowe criteria.15

26. On 14 April 2011, when Patient B was 13, her general practitioner, Dr Lees,

referred her to Dr Hocking for a reassessment as she had developed a limp and

been experiencing increasing pain over the previous three to four years.

Dr Hocking saw Patient B on 27 May 2011 and reviewed imaging of her hip

which showed hip dysplasia. Dr Hocking advised Dr Lees, by letter dated

31 May 2011, that the patient may require a peri-acetabular osteotomy (PAO).16

An arthrogram (MRI) on 10 June 2011, also revealed a possible ‘supero-

anterior17 labral18 tear’ that was at the ‘12 o’clock position’, and a poorly

developed acetabulum19 with an edge angle described in the joint report of the

experts around the time of the arthroscopy as between 0-5 degrees, and in other

evidence between 5 and 10-15 degrees, as compared with the normal

25 degrees.

27. On 19 August 2011, after receipt of the MRI, Dr Hocking saw Patient B and

advised her that he proposed a two-stage treatment plan to repair her hip, and on

14 Dysplasia is an abnormal development, for example, of cells, tissue, or an organ. Dysplasia of the hip is a developmental deformation or misalignment of the hip joint

15 Transcript 16 March 2015 at page 8016 A peri-acetabular osteotomy is a surgical procedure involving the

cutting of bone (the osteotomy) around the acetabulum (hip socket)17 Anterior is the front; superior is the top 18 The labrum is the rim of soft tissue, or fibrocartilage surrounding

the acetabulum which stabilises the hip by deepening the socket and protects the joint surface

19 The acetabulum is the cup-shaped socket of the pelvis in which rests the head of the femor (thigh bone), the two forming the hip joint. The acetabular rim is the outer edge of the acetabulum

12

23 August 2011 he wrote to Dr Lees and explained the two-stage treatment

plan. First, he proposed an arthroscopy20 to suture the labral tear and to assess

the quality of the cartilage; second, a peri-acetabular osteotomy (PAO) to ‘re-

direct the acetabulum into a more favourable position’, to be performed ‘some

time later’. He categorised the urgency as Category B, that is, within the next

90 days.

28. On 15 February 2012, Dr Hocking performed a left hip arthroscopy on Patient B

at the Calvary Public Hospital, Canberra. In his post-operative report (first

report/first operation report) dated 15 February 201221 Dr Hocking listed

abnormal findings as labral tear, pincer lesion22 and hip dysplasia. The report

then went on:

The labrum was degenerate. The degenerate material was debrided and then a stitch was attempted to be placed in the labrum. The labrum was too degenerate and the stitch cut out. The labrum was debrided23 back to a stable rim. The underlying acetabular rim was exposed and a pincer lesion was encountered. The rim was recontoured so that the pincer lesion would not impinge after the planned PAO.

29. Some three to four months later Dr Hocking produced a second more detailed

account of the operation (second report/second operation report)24. This second

report was written when Dr Hocking became aware that a complication had

followed the surgery on Patient B, which could lead to disciplinary proceedings

and, on the advice of Dr McNicol and Dr Gillespie, an orthopaedic surgeon in

Canberra, who had been appointed by the Board to supervise Dr Hocking

following an earlier complaint relating to him. This second report noted that 20 An arthroscopy, or arthroscopic surgery, is a minimally invasive

surgical procedure on a joint in which an examination and sometimes treatment of damage is performed using an arthroscope, a special illuminating instrument and, if needed, other instruments, inserted into the joint through a small incision or portal

21 Patient B T docs. pages 169-17022 Pincer lesion or impingement arises when the ball-shaped femoral

head rubs abnormally against the acetabulum or cup-shaped socket into which it fits, because there is an excess of bone on the anterior acetabulum, inhibiting normal movement. This type of impingement occurs because extra bone extends out over the normal rim of the acetabulum and causes an impingement on the thigh bone when the hip is flexed. ‘Impingement’ refers to some portion of the soft tissue around the hip socket getting pinched or compressed

23 Debridement is the surgical removal of foreign material and damaged tissue from a wound or organ

24 Patient B T docs pages 171-173

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Dr Hocking had decorticated25 the ‘bone adjacent to the tear … with an

arthroscopic burr to facilitate healing of the repair’, referred to the failure of the

attempted suture of the labrum, and continued:

These pieces [of the labrum] were deemed irreparable, and as such the labrum was debrided. … Having lifted the capsule off the anterior [front] margin of the acetabulum an extra articular26 lump of bone was identified protruding from the anterior acetabulum… This same lump is identified in the preoperative standing false profile view, proximal to the joint. This lump was then removed with the burr in preparation for the periacetabular osteotomy (which would be the next planned procedure). This lump has been referred to as a pincer lesion in the shorthand operation report as no other abbreviated description exists for such a lump. The lesion does not truelly (sic) fit the accepted definition of a pincer lesion and thus calling it a pincer lesion is a misnomer in the shorthand operation report. Image 427 shows the anterior acetabular margin with this extra articular lump removed. Image 4 also shows in the foreground the remnant of the acetabular labrum at the margin of [Patient B’s] acetabular rim indicating that the contour of the acetabular rim was not altered by the burr as the labral remnant remained in position.

30. Patient B was discharged on 16 February 2012 and initially appeared to be in a

satisfactory condition. However, when she was first seen post-operatively by

Dr Hocking on 23 March 2012, some five weeks after the arthroscopy, he

informed Dr Lees that she was ‘not making the usual recovery that we see after

a hip arthroscopy’, that she ‘had an irritable hip’, and was ‘walking with a

Trendelenburg limp’. Following the surgery, Patient B had been attending

physiotherapy at the Calvary hospital but with limited success and Dr Hocking

referred her to another physiotherapist who identified a marked leg length

discrepancy and reported a lack of expected improvement.

31. Dr Hocking saw Patient B again on 5 April 2012, and on 10 April 2012, in a

letter to Dr Lees, he noted that she ‘is much better now’. He repeated that she

was ‘eventually going to need to have a peri-acetabular osteotomy as her lateral

edge angle is only 15 degrees’.

25 Decortication is a procedure used in surgery involving the removal of the surface layer, membrane, or fibrous cover of an organ

26 Extra-articular to the hip joint is outside the joint femur or thigh bone

27 Image 4 refers to the photographs which were taken during the operation, and were in evidence at the hearing

14

32. On 31 May 2012, an x-ray identified ‘quite marked dysplastic feature to the left

acetabulum, with superolateral subluxation28 of the femoral head, and …

moderate secondary osteoarthrosis29 changes’.

33. Patient B was readmitted to hospital and on 1 June 2012, under anaesthesia, her

left hip was returned to position. However, even with traction, the hip

continued to dislocate. Dr Hocking again reported to Dr Lees on 28 June 2012

that the hip dislocated ‘with external rotation’ and said he was discussing the

case with Professor Paul Smith. At this time, Patient B was no longer his

patient, nor was Dr Lees her general practitioner.

34. In early June, at the request of her family, Patient B’s care had been taken over

by Professor Smith. Following further CT imaging, an MRI scan, and advice

from colleagues, Professor Smith wrote to Dr Zekra, then general practitioner

for Patient B, on 19 June 2012 noting that the imaging had confirmed that the

hip had dislocated and following the arthroscopy there had been a ‘rapidly

progressive joint destructive process’ and there was ‘clear evidence of loss of

articular surface and damage to the femoral head’. He also noted, after

observing the intraoperative images taken at the time of the surgery, that

‘significant bone was removed from the anterior margin of the left hip joint’.

His letter went on ‘This, in my view, is highly likely to have critically

destabilised [Patient B’s] left hip joint leading to the rapid destruction of the

joint itself’.

35. At Professor Smith’s request, on 26 June 2012, Patient B was examined, under

anaesthesia, by Dr Solomon, a Sydney orthopaedic surgeon, specialising in

surgery of the hip and knee. Dr Solomon informed Professor Smith on

2 July 2012 that the imaging:

… shows a markedly subluxed left hip with arthritic changes and destruction of the cartilage on both the femoral and acetabular side. … I believe that the reason why this hip deteriorated so rapidly is that the combination of hip arthroscopy, large capsulotomy,30 labral resection and

28 A ‘subluxation’ means the ball (femoral head) is partially out of the hip socket; while a dislocation implies that the ball was completely out of the socket.

29 ‘Osteoarthritis’ is chronic non-inflammatory arthritic bone disease30 A capsulotomy is an incision that opens the clear, cellophane-like

capsule that wraps around an organ, in this case, the hip joint

15

bone resection has rendered a dysplastic hip even more unstable and as a result the femoral head subluxed and eroded the superior edge of the acetabulum.

36. Dr Solomon’s report also said:

I find it puzzling that the arthroscopic operative report comments on a pincer lesion as this type of impingement does not exist in hip dysplasia. As you know the problem with dysplasia is too little bone rather than too much bone.

37. On 20 July 2012, Professor Smith performed a total left hip replacement on

Patient B with acetabular bone grafting.

38. A notification to the Board concerning Patient B was made by Dr Solomon

dated 9 July 2012. The matter was considered by the Immediate Action

Committee of the Board, which, on 7 September 2012 advised that it proposed

to take immediate action, namely, to appoint an investigator to consider the

circumstances leading to the notification.31 Following submissions made by

Dr Hocking, the Board advised on 13 March 2013 that it had decided to remove

the 7 September 2012 immediate action conditions on his registration, and

would refer the matter to a Performance and Professional Standards Panel

(Panel) of the Board pursuant to section 182 of the National Law.

39. There were six allegations investigated by the Panel which found ‘no case to

answer’ on five of the allegations. In relation to the allegation that Dr Hocking

‘debrided [Patient’s B’s] left acetabular rim’ the Panel found ‘there was

unsatisfactory professional conduct which may constitute professional

misconduct’, and referred the matter to the tribunal.

40. For the purposes of the hearing by the Tribunal, a panel of experts was

convened to produce a report on Patient B’s treatment. The panel was chaired

by Dr A Cairns, a consultant orthopaedic surgeon, and the panel comprised

Dr Young, Dr McNicol, Professor Smith and Professor Cundy, an adult and

paediatric orthopaedic specialist in Adelaide, who contributed to the

proceedings as the independent expert at the request of the Board. Dr Cairns’s

summary of their conclusions follows, together with a summary of the points of

dissension of Professors Smith and Cundy.

31 Pursuant to sections 155-159 of the National Law

16

Joint Report Patient B - Dr Cairns, provided 16 March 2015

Dissenting aspects of the report by Professor Smith, and Cundy (15 March 2015)Agreed

It was agreed that [Patient B] was diagnosed with a dislocation of the left hip, and received treatment which commenced at age 2 years. At that time she underwent a left hip open reduction and Salter pelvic osteotomy performed by Dr Terence Hillier, orthopaedic surgeon practising in Albury-Wodonga. The experts agreed that the treatment rendered was for delayed presentation of developmental dysplasia of the left hip.

The experts agreed that [Patient B] was assessed by General Practitioner, Dr Katy Lees in 2011 and referred to Dr Richard Hocking with the diagnosis of left hip acetabular dysplasia, pain provoked during sporting activities, and tendency to limp.

The experts agree that imaging investigations conducted about that time demonstrated a ‘centre edge angle’ of the hip in the region of 0 degrees to 5 degrees, and a steep slope to the sourcil (acetabular roof), including an MRI scan reporting an antero-superior tear of the acetabular labrum.

The experts agree that Dr Richard Hocking’s decision to perform a hip arthroscopy for treatment of the MRI-documented labral tear followed by subsequent peri-acetabular osteotomy (PAO) intended to prolong the longevity of the hip joint, was a reasonable clinical decision, notwithstanding argument and division of opinion within the orthopaedic community at large as to whether intra-articular pathology within the joint should be treated in two stages, as proposed by Dr Hocking, or in one stage at the time of performance of the pelvic PAO.

The experts agree that within a short time following the surgery the patient’s left hip joint became unstable and dislocated.

The experts agree that the resultant instability hastened the onset of arthritis and the emergent need for hip joint replacement.

The experts agree that current conventional orthopaedic wisdom is to proceed with the second stage PAO in a timely manner, as soon after the hip arthroscopy as clinically

Not agreed The experts do not agree about the intra-

operative findings reported by Dr Hocking in either of his accounts of the arthroscopic surgery undertaken

There is disagreement between the experts over the issue of where and how much bone was removed from the region of the acetabular margin.

It was not agreed by the experts that Dr Richard Hocking’s post-arthroscopic management was sub-optimal because of factors outside his control.

[T]he experts disagree as to the validity, accuracy and reliability of the [‘aide memoir’], based upon the apparent discrepancies as compared to the contemporaneous operation report formulated at the time of the surgery, some four months before the latter ‘aide memoir’ also dated 15 [February] 2012.

The experts disagree regarding the issue of debridement of the patient’s acetabular rim while performing a hip arthroscopy on 15 February 2012, contrary to the patient’s medical condition, as outlined above. This disagreement was largely based upon the controversy regarding the precise location and quantity of bone removed.

The experts were unable to offer specific comment regarding the significance of the current embargo (other than recognising that it precluded [Dr Hocking] from doing so at the time) which would have prevented Dr Hocking from performing a peri-acetabular osteotomy, the second of the two stage treatment plan recommended to the patient, given that none of the parties are cognisant of what was in Dr Hocking’s mind at the time. It was noted that the hip arthroscopy was performed on 15 February 2012, and that the embargo in place at that time was potentially to be lifted on or about 26 June 2012 (paragraph 3, Statement ‘A’), a time interval which would not be inconsistent with an acceptable interval between the two procedures, had the unfortunate catastrophic complication not occurred.

17

appropriate. The experts agree that the second stage

osteotomy should be delayed until the hip has ‘settled down’ following the arthroscopy, preferably in the absence of any stiffness or signs of irritability. …

The experts agree that the patient’s post-operative management following the hip arthroscopic surgery was not optimal….

[T]he experts agree that the left hip arthroscopy resulted in instability osteoarthritis of the patient’s left hip and hastened the need for hip joint replacement.

The experts agree that this unfortunate outcome has been experienced by other surgeons working in the area, and it is increasingly documented within the orthopaedic literature, including prior to the index operation of 15 February 2012.

The experts agree that the creation of the document known as ‘aide memoir’ by Dr Hocking on the advice of Drs McNicol and Gillespie, [‘some three or four months after the operation’] was not unreasonable [and was prudent] in the circumstances. …

The experts agree that left untreated, her situation would now be considerably worse. It is reported that the patient has derived a good result and is functioning well following left total hip replacement. However, total hip replacement has a finite life and will require revision, several times during her lifetime.

The experts disagree as to the possible motivation underlying the statements made with the [‘aide memoir’].

Contentions

41. The Board submitted that the allegations in the Patient B matter are as follows:

Allegation 1 - by debriding Patient’s B’s acetabular rim (that is, by removing

bone from the rim of the hip socket) while performing a hip arthroscopy on

15 February 2012 on her left hip, which was not indicated by her medical

condition, Dr Hocking engaged in unsatisfactory professional performance.

Allegation 2 - by failing to disclose to the patient and her family the restriction

on his registration which had the potential to affect the treatment he was to

provide to her involving a two-staged treatment plan, the second stage of which

18

(the peri-acetabular osteotomy) he was restricted from performing, Dr Hocking

engaged in professional misconduct or unprofessional conduct.

Allegation 3 - by creating a second operation report in respect of the hip

arthroscopy performed on 15 February 2012 which on its face purported to be a

contemporaneous account of the operation but which was written several

months after the operation, Dr Hocking engaged in professional misconduct, or

unprofessional conduct.

42. Dr Hocking contended in relation to allegation 1 that:32

(a) he did not remove significant bone from Patient B’s acetabular rim;

(b) he resected a bump outside of the articular part of Patient B’s hip joint,

proximate to but not from her left acetabular margin as, in his professional

opinion, if the bump had been left in place it would cause impingement

after the second (PAO) stage of Patient B’s treatment; and

(c) the superior defect in Patient B’s left hip acetabulum was a defect caused

after Patient B’s left hip subluxed and some time after the

15 February 2012 hip arthroscopy.33

Consideration including evidence

43. The Tribunal observes that in coming to its decision it has taken note of several

matters which affected the weight it gave to some of the copious evidence:

(a) the testimony of all but one of the experts was polarised to a greater or

lesser extent, the exception being Professor Cundy the independent expert;

(b) only two people had seen the inside of Patient B’s hip joint and hence

were in a better position to assess its anatomic state. Each of those persons

(Dr Hocking and Professor Smith) had opposing views of the relevant

state of her hip joint and what occurred to cause the dislocation of the hip;

(c) two of the witnesses for Dr Hocking (Dr Young and Dr McNicol)

admitted that they had relied to a significant extent on conversations they

had with Dr Hocking when compiling their expert reports;

32 Dr Hocking’s Closing Submissions at [4.8]33 Dr Hocking’s Closing Submissions at [4.26]

19

(d) the two principal witnesses for the Board (Professor Smith and Professor

Cundy) would not claim to be hip arthroscopists. Nonetheless, they are

experienced orthopaedic surgeons and Professor Cundy said that he had

undertaken arthroscopic procedures on many joints but not the hip, so he

is a practising arthroscopist. In addition, Professor Smith pointed out, that

although he was not a practising hip arthroscopist, arthroscopy being a

technology which had developed after he became a surgeon, he has acted

as assistant or observer on hip arthroscopic procedures over the last

couple of years in order to become fully familiar with the current state of

hip arthroscopic techniques;

(e) the issues in this matter arose in 2012 and 2013. Since then, there has

been a change in Dr Hocking’s circumstances, namely, he has abandoned

his paediatric practice except for emergency surgery, only undertakes

adult elective hip and pelvic surgery, and no longer practises in the

Australian Capital Territory;

(f) the evidence of the orthopaedic surgeons in the two hospitals in which

Dr Hocking has been working in the last twelve months (Dr Furzer, North

West Regional Hospital, Burnie, Tasmania and Dr Finch, head of the

orthopaedic department, Tamworth Rural and Regional Hospital)

provided a recent appraisal of his technical skills, competence and

knowledge in his orthopaedic sub-specialty;

(g) some of the experts (Dr Young, in his 9 April 2014 report, Dr McNicol in

his report 22 July 2014) point out that isolated images cannot give an

accurate picture of what occurred during surgery; others, such as

Professor Smith, comment that the images are insufficiently distinct to be

helpful, a feature in part of the developmental stage of the skeleton of

Patient B. In addition, the scanned images are enlargements and have

pixelated, thus losing resolution.34 Finally, the joint report in this matter

noted that ‘How much bone has been removed at the time of the hip

arthroscopy is difficult to judge from the limited arthroscopic photographs

available’. These matters detract from the weight to be attributed to the

images.

Allegation 1: Debriding Patient B’s acetabular rim

34 Transcript of Proceedings 18 March 2015 at page 116

20

44. This has been the most complex and technical of the allegations before the

Tribunal. One of the difficulties is a definitional one. It is illustrated in this

observation by Dr Hocking:

The arthroscope, which is the camera in this photograph, is situated outside of the hip joint. When I am talking about the hip joint, I am meaning the specific part of the hip joint which is the articulation between the femoral head, and the acetabulum. It is true that the hip joint also includes the capsule but the hip joint has intra-articular compartments and extra-articular compartments. The arthroscope, in this position, is in one of the extra articular compartments that hip arthroscopists refer to as the para-labral gutter. This is immediately in from of the hip joint and does not show inside the hip joint, thus the appearance of a burr in this compartment indicates that the burr is not in the hip joint itself but is anterior to the hip joint’.35

45. Other difficulties have been the conflicting evidence from the medical experts,

including as to the interpretation of the images, the exact location of the

removal of bone during the arthroscopy, and the absence of imaging of Patient

B’s hip between 15 February 2012 and 11 April 2012.

Allegation 1: Expert evidence

Dr Young

46. Dr Young’s report dated 12 September 2012 noted the reference in

Dr Hocking’s first report to ‘a pincer impingement’ being resected and went on:

Dr Richard Hocking assures that there was no attempt to remove a pincer lesion but simply to freshen the bone underneath the torn labrum, to reattach the labrum which I would concur is totally appropriate. After there was a failure to be able to get sutures to hold in the labrum, part of the labrum was resected but again due to technical difficulties unfortunately the mini capsulotomy used to access the labrum was not repaired at the time of surgery. However, the patient was asked to remain on crutches for a prolonged period of time to protect the hip from subluxation and the patient was advised to undergo a Periacetabular Osteotomy’.

47. He then observed that ‘many surgeons around the world have had this

experience’,36 which was well documented in the literature including an article

35 Transcript of Proceedings 20 March 2015 at page 26936 Dr Young in his report dated 9 April 2014 said that he had found at

least 6 peer review articles ‘detailing the risk of rapid onset subluxation osteoarthritis of the hip after hip arthroscopy

21

by Mei-Dan and Brick,37 and concluded: ‘I believe Dr Richard Hocking …

became the victim of an unfortunate complication, perhaps avoidable if the

proposed Periacetabular Osteotomy was performed soon after the hip

arthroscopy’. In his report of 9 April 2014, Dr Young noted:

One could be critical of embarking upon that labral report finding that the labrum was too degenerate to repair and needing to resect it and then not protecting the hip with an immediate periacetabular osteotomy.

48. Dr Young reported on 9 April 2014: ‘I do note in the detailed operative report

[second report] of Richard Hocking, he talks about removing a ‘spur of bone

from the edge of the acetabulum’ which he felt might cause pincer

impingement. A spur of bone simply means flattening the edge of the

acetabular rim which would not in itself reduce the coverage of the femoral

head significantly and therefore would play only a minor part in de-stabilising

the hip. The capsulotomy and the fact that the labrum was not repairable were

the two aspects of the hip arthroscopy intervention that most contributed to the

instability in the hip, as the subluxation was occurring, producing acetabular

edge overhanging and then the rapid onset of subluxating osteoarthritis’ (at 3-4).

Professor Cundy

49. In his report of 7 December 2012 Professor Cundy had noted that in the second

operation report Dr Hocking had stated that ‘the contour of the acetabular rim

was not altered by the burr as the labral remnant remained in position’.

Professor Cundy said of this comment: ‘This would appear to indicate that

Dr Hocking was aware of the potential dangers of removing bone from the

acetabular rim in a patient with hip dysplasia’. He then went on: ‘I consider it

was inappropriate to remove the bone from the patient’s acetabular rim

especially, as stated in the ‘first’ operative report, the labrum was found to be

not suitable for repair prior to the described bony rim surgery (at 5).

50. In his 11 September 2014 report Professor Cundy commented on the location of

the bone removal by Dr Hocking:

37 Omer Mei-Dan, MD, Mark McConkey, MK and Matthew Brick, MD ‘Catastrophic Failure of Hip Arthroscopy Due to Iatrogenic Instability: Can Partial Division of the Ligamentum Teres and Iliofemoral Ligament Cause Subluxation?’ (2012) 28 The Journal of Arthroscopic and Related Surgery 440-445

22

This ‘first’ operative report … indicates that a pincer lesion was encountered after the acetabular rim was exposed and the rim was recontoured. This clearly indicates that bone was removed from the patient’s acetabular rim. The ‘second’ operative report provides different details and makes reference to a ‘lump’ of bone which was removed and includes details to differentiate it from the pincer lesion described in the ‘first’ operative report. In fact, the initial pincer lesion is described in the ‘second’ report as a ‘misnomer’ and [the second report] later makes specific mention that the contour of the acetabular rim was not altered by the burr. This is different to the ‘first’ operative report where it is clearly stated that ‘The rim was recontoured so that the pincer lesion would not impinge after the planned PAO’.

51. Professor Cundy confirmed in a letter dated 24 February 2014 that he had

viewed the supplied images but was ‘of the opinion that three of the images are

consistent with the action of surgical bony debridement of the acetabular rim’.

As he had said in a report of 12 December 2012: ‘I consider the debridement of

the acetabular rim was not required and the performance of this part of the

procedure has contributed to the hip subluxations’.

52. He pointed out that the stability of the hip joint relies on structures including the

‘bony structures of the hip joint, the capsule and the surrounding labrum’ and

that: ‘The procedure of left hip arthroscopy performed on [Patient B] did alter

all these 3 structures by way of bony debridement of the acetabular rim, division

of the capsule … as well as debridement of the labrum (which was deemed

irreparable)’.

53. In response to a question about whether the intra-operative photographs show

that Dr Hocking removed bone from the patient’s acetabular rim during the

operation in question, Professor Cundy said in his report dated 11 September

2014:

The intra-operative photos indicate that a burr was introduced into the joint. The intra-operative photos do not readily reveal what was exactly performed with the indicated burr, however, the ‘first’ operative report does clearly indicate that ‘the rim was recontoured’ and I feel it is reasonable to therefore assume that this bone recontouring was performed with an instrument similar to the burr as evidenced in the operative photographs.

In addition the ‘second’ operative report makes mention of the use of a burr but

in this report Dr Hocking alleges that this was used to remove extra articular

23

bone. Whilst the intra-operative photographs do not clearly demonstrate

removal of bone from the acetabular rim, the ‘first’ operative report written by

Dr Hocking indicates that this was performed.

54. In his evidence to the Tribunal Professor Cundy said:

We’ve got strong suggestions from the intra-operative photos that bone was removed. We’ve got evidence from comparing the pre-arthroscopy and the x-rays and the x-rays done during the arthroscopy that bone was removed and comparing those with the post-operative x-rays as well it also reflects that bone has been removed from the acetabular rim beyond a simple freshening up of the bone.38

55. He provided, at short notice, a further report for the Tribunal after he had given

his initial evidence. This report, dated 22 March 2015, commented on a number

of extra images that were produced for the first time by Dr Hocking at the

hearing (Hocking images). The report affirms his opinion, based on the images

supplied, that the anterior wall of the acetabulum overlapped the acetabular roof

and was not clearly separate from it as Dr Hocking’s diagram on the second of

his images indicated. He interpreted the information from Hocking image 7/17

as indicating that the extra-articular bump ‘is on the acetabular rim’.

56. He agreed that the burr used in the operation was in the hip joint ‘as described

anatomically’ as it was ‘in the para-labral gutter’. As he said both the ‘intra-

articular’ and the ‘extra-articular’ compartments ‘are within the hip joint

proper’. He confirmed that the term ‘extra-articular’ really means ‘it’s not

within the opposing surfaces of the femoral head and acetabulum’. However, ‘it

is within the hip joint’.39 He repeated that his reading of Hocking images 10/17

and 11/17 ‘confirms removal of bone from the acetabular rim’.

57. Professor Cundy also noted that if the location of the bump was as shown by

Dr Hocking, it would not have caused impingement after a PAO as it was well

above the acetabular rim. That again suggested that it was the acetabular rim

from which bone was removed rather than above it. He adhered to this view

under cross-examination.40

38 Transcript of Proceedings 16 March 2015 at page 4839 Transcript of Proceedings 24 March 2015 at page 43940 Transcript of Proceedings 24 March 2015 at pages 438-439

24

58. He reiterated this view in his evidence on 24 March 2015 when he said:

… it’s been alleged that when a peri-acetabular osteotomy is performed, that bump of bone there would impinge on the femoral head/neck area. I do not believe that is possible. The bump of bone is outside the acetabular rim, and if I put the femoral head in the socket … when the peri-acetabular osteotomy is done, the pelvis is shifted laterally and anteriorly to improve the coverage of the socket over the ball. Now, if the bump of bone is up there and you’ve tilted your pelvis laterally and anteriorly, what will happen is that the acetabular rim will bump into that area well before that bump of bone would bump into it.41

59. In his final evidence to the Tribunal on 24 March 2015, Professor Cundy said,

in his view, using the clock face analogy to describe the site of the debridement

according to Professor Smith, the area of bone removed was around 10 o’clock

to 1 o’clock but Hocking image 9/17 suggested that the bone removed was from

12 o’clock to 2 o’clock. That brought the site of the debridement closer to the

red dot on Hocking image 9/17 which, as Dr Hocking claims, was where he

located and removed a bump.42 He did concede that if the bump of bone was in

the location suggested by Dr Hocking, removal of it would ‘be highly unlikely

to destabilise the hip joint’.43

60. In response to the argument of Dr Hocking that it was rapid arthritic change,

rather than any excess removal of bone by him that caused the need for the total

hip replacement, Professor Cundy said that the 31 May x-ray revealed ‘bone-

on-bone articulation’ and he observed ‘less bone in the area of the acetabular

rim’.44 When asked whether the deterioration of the hip bone between February

and April could have been due to weight-bearing, rather than removal of bone

during the arthroscopy, he said he was surprised at the rapidity with which the

deterioration occurred. In his view the bone was removed surgically, rather than

due to natural causes and this was confirmed by the first report.45

61. On this issue, the transcript contains the following interchange between counsel

for Dr Hocking and Professor Cundy:

41 Transcript of Proceedings 24 March 2015 at page 43242 Transcript of Proceedings 24 March 2015 at pages 433-434, 437,

43843 Transcript of Proceedings 24 March 2015 at page 43944 Transcript of Proceedings 16 March 2015 at page 4545 Transcript of Proceedings 24 March 2015 at pages 54-55

25

Is there any other explanation for the change in the contour of the acetabulum between the x-rays that were taken 11 April 2011 and those taken on 31 May and 3 June 2012?---It is possible that with weight bearing that the femoral head has caused a deformity to that area as well as on that area depicted.

For instance, if the femoral head was subluxing because the – for example, the removal of part of the labrum and the capsulotomy itself, that could well, I’m going to suggest to you, cause the bone on bone friction in precisely the area that’s shown in those later x-rays. Do you agree with that?---I agree it is possible, but it does surprise me with the rapidity of which those occurred.

That presumably depends on the idiosyncratic anatomical qualities of the individual patient?---Yes.

… And in all of those circumstances, the truth is, isn’t it, Professor, you are not able to say whether what is shown on those 31 May and 3 June x-rays is a result of surgical removal of bone as opposed to friction caused by a subluxing joint?---Indeed, I am able to say that there was surgical removal of bone from that area because it’s clearly stated in the first operative report that bone was removed from the acetabular rim.46

62. Professor Cundy refuted Dr Hocking’s evidence to the Tribunal that, if the

quantity of bone removed was as described by Professor Smith, there would

have been insufficient time to complete the removal within the time taken for

the arthroscopy. As he noted, if Dr Hocking’s account was accepted, it took

him less than five minutes to remove the ‘extra-articular bump’ and even if the

amount of bone removed was larger, ‘with powered instruments, such surgical

debridement can be efficiently performed and not take much longer [than

5 minutes] to perform’ (at 3). In cross-examination he maintained that to burr

away two to three cubic centimetres of bone, the amount estimated by Professor

Smith, would take five to ten minutes.47

Professor Smith

63. Professor Smith took over the care of Patient B in early June 2012. On 29 June

2012 Professor Smith wrote to Dr Hocking and said:

As I discussed with you this morning, there was in my opinion no indication for removal of bone in this patient. Contrary to your assertion that the reason that this hip came out of joint was due to the capsulotomy, the real reason is bone removal. The degree of bone loss following your arthroscopy is apparent when the preoperative and postoperative radiographs are compared. The issue in hip dysplasia is that there is not enough bone. Removing bone makes things worse –

46 Transcript of Proceedings 16 March 2015 at pages 54-5547 Transcript of Proceedings 24 March 2015 at page 440

26

as exemplified in this case. Your operation report clearly states that you found a pincer lesion and removed bone – there is no pincer lesion in a patient with hip dysplasia – including this patient – I have diligently reviewed all XR and preop scans and have verified this. The patient had significant anterior and superior bone deficiency – see the false profile view for confirmation.

64. On 20 July 2012 he wrote to the general practitioner of Patient B, following the

total hip replacement he had performed on Patient B that day, and noted:

On the acetabular side there was a significant superolateral defect measuring approximately 3cm in length by 1.5cm in height. [Patient B’s] own native femoral head was used to reconstruct the defect with the graft configured in a figure 7-type format fixed with several screws. A 52mm outside diameter acetabular component was inserted with a single supplemental screw.

65. On 5 December 2012, Professor Smith wrote to the Board. In that letter he

noted: ‘I have reviewed x-rays taken in April 2011 and these clearly

demonstrated evidence of left hip dysplasia, there was no evidence of any

degenerative joint disease at that stage of the well maintained joint space’. His

report continued:

I have thoroughly reviewed … the preoperative plain radiographs taken in April 2011 and preoperative MRI scan of the hip taken in June 2011. There is no evidence of a left acetabular pincer lesion seen on preoperative imaging. A pincer lesion is defined as excess acetabular bone which thereby impinges on the femoral neck at the extremes of movement. [Patient B] in fact demonstrates evidence of a deficiency of acetabular bone, namely hip dysplasia, which is the opposite end of the acetabular morphological spectrum to that seen in a pincer lesion situation.

[Following a history of the matter, the report continued:]

At further review approximately three months following the operation [arthroscopy] an x-ray was taken. The x-ray showed that the left hip had almost fully dislocated and had gone on to develop significant radiological signs of arthritis.

[The report noted that on 6 June 2012 Professor Smith examined Patient B

while she was in hospital:]

Review of her radiological investigations clearly demonstrated a significantly subluxed left hip joint with evidence of significant acetabular

27

bone loss and degenerative changes on x-ray. I organised an urgent CT and MRI scan on the basis of the plain x-ray series. Those investigations … [demonstrated] once more major joint degenerative changes with full thickness chondral surface loss confirmed on MRI arthrogram imaging. Significant acetabular bone loss was confirmed both on CT scan and MRI scan…

The inescapable conclusion as to why [Patient B’s] left hip had come out of joint and developed rapid arthritic change with total destruction of joint surface was that the combination of the hip arthroscopy and associated capsulotomy together with an extensive labral resection and removal of bone had rendered a hip which was dysplastic to begin with and therefore at risk, even more unstable leading to the hip migrating out of joint producing point loading and subsequent degeneration.

66. In a statement in July 2013 Professor Smith noted that in an email exchange

between himself and Dr Hocking in mid-June, Dr Hocking had sent him ‘the

photos of [Patient B’s] hip joint at the time of the first hip scope’ but that this

was not the complete set. His statement continued48:

.... Dr Hocking did not give me the intraoperative pictures which showed the removal of bone from the acetabular rim. I received those pictures from the patient, when she showed me the complete set of x-rays and intraoperative images. At that point I realised that bone had been removed during the arthroscopy.20. I specifically asked Dr Hocking about this (verbally). I said to him words to the effect of: “Did you remove the bone, Richard?”21. He answered in words to the effect of: “no”.

67. In a letter to solicitors for the Board dated 17 February 2014, Professor Smith

said in response to a question ‘What evidence have you relied upon to come to

the conclusion that bone was removed from the patient’s acetabular rim by

Dr Hocking?’-

Several of the available intraoperative photographs showed a large area of debrided bone continuous with the hip joint itself. One of the available intraoperative arthroscopic photographs clearly shows an arthroscopic burr which has been introduced into the joint. The purpose of an arthroscopic burr is to remove bone.

Further evidence that bone has been removed from [Patient B’s] acetabular rim is available by comparison of the preoperative plain radiographs versus the post-surgical radiographs which clearly demonstrate loss of acetabular rim bone.

48 In [19], [20] and [21]

28

Further to this when undertaking [Patient B’s] hip replacement a significant anterolateral bone defect was encountered consistent with the above removal of bone. That bone defect required bone grafting in order to restore bone stock at the acetabular rim.

68. In response to the question ‘What consequences followed the removal of bone?’

Professor Smith said:

[Patient B] had extensive acetabular labrum and acetabular bone removed by Dr Hocking. The direct consequences of the removal of both labrum and acetabular bone were to remove critical supportive structures responsible for load bearing and stability of the hip joint. Because of the removal of these structures [Patient B’s] hip became unstable, came out of joint, and became rapidly destroyed as a result.

69. In a further letter to solicitors for the Board of 3 September 2014,

Professor Smith maintained that, despite Dr Young’s comments, the

intraoperative photographs demonstrate that Dr Hocking removed significant

bone from the patient’s acetabular rim during the operation in question. His

reasons were that the burr within the joint was directed to an area of exposed

bone in continuity with the hip joint, the removal of bone was consistent with

the radiographs post-surgery which showed bone loss, and he had found a

corresponding bone defect when he did the hip replacement surgery. He also

said in evidence that he had been convinced, prior to his total hip replacement

surgery, that bone had been removed based on Dr Hocking’s first operation

report, the arthroscopy images, the x-ray, the CT scan and the MRI scan, all of

which were ‘consistent with removal of bone from the acetabulum’.49

70. Professor Smith supplied at short notice a supplementary statement, dated

23 March 2015, following the production by Dr Hocking of the Hocking

images, some of which had not previously been seen.

71. In relation to Dr Hocking’s testimony, Professor Smith said Dr Hocking:

… incorrectly represents the site of the defect and the site of bone graft to the superior-posterior acetabular rim. This is a misrepresentation, as reference to my hip replacement operation record will clearly demonstrate. The defect was in the antero-superior acetabular rim’.

49 Transcript of Proceedings 18 March 2015 at page 112

29

72. He agreed that the site of the bone removal Dr Hocking presented in Hocking

image 9/17 is antero-superior which is where the defect was found and the bone

graft placed. That description appears to correspond to the antero-superior

region of the hip joint, that is, in front and above the acetabular rim.

Professor Smith denied in cross-examination that the bony lump which was

debrided was a centimetre or so away from the acetabular rim.50 He also said

that the debridement, using the clock-face analogy was closer to 10 to 12 on the

clock face.51

73. Of the Hocking image 11/17 he said in his report of 25 March 2015 that ‘The

image to the right clearly demonstrates bone which has been removed down to

the line of the acetabular joint margin. This is inside the joint. This is

inconsistent with Dr Hocking’s claim that bone was only removed from an

extra-articular structure’. He also noted of image 11/17 that the ‘marked areas

do not correspond to the area of bone defect encountered at hip replacement

surgery and where the bone graft was placed’.

74. In relation to Hocking image 12/17 and photos 5 and 6, Professor Smith

disagreed with Dr Hocking that ‘It is impossible for this photograph to be taken

if the area of bone that is alleged to have been removed was removed during the

operation’. His disagreement was because he said ‘the view is of the remaining

posterior segment of labrum and does not include the more antero-superior

acetabular rim where that and the associated labrum had been removed’.

75. Professor Smith was also critical of the conclusions drawn by Dr Hocking in

relation to the Hocking image 13/17. The reason was that it was a two

dimensional image of a three dimensional structure and on such an X-ray image,

he said ‘it is simply not possible to conclude whether a bone defect is anterior or

posterior’. By contrast, as he said, it is possible to so conclude relying on a CT

scan and in Patient B’s case, the CT scan confirmed the defect is antero-

superior. He said, the location of the defect was also confirmed in the operative

findings as contemporaneously documented as antero-superior.

50 Transcript of Proceedings 24 March 2015 at page 45751 Transcript of Proceedings 24 March 2015 at page 457

30

76. Professor Smith also disagreed with Dr Hocking’s evidence that Hocking image

15/17 indicated there had been ‘significant advancement in arthritis comparing

x-ray taken on the 31st May vs x-ray taken 17th July’, because, as he said, ‘the

two radiographs demonstrate virtually identical levels of joint destruction’.

77. In earlier evidence, Professor Smith had said there was no arthritic change in

Patient B’s hip prior to the arthroscopy. His evidence was that Patient B was a

‘young, very fit, active young lady. She had fantastic bone quality’,52 and that

she ‘had no evidence of any arthritic change at all on her imaging studies prior

to her arthroscopic surgery’.53 He also said ‘there is no bone that is protruding

anywhere on any pre-operative imaging.54

78. The evidence of the good state of Patient B’s hip bone pre-operatively was

supported by the radiographic findings which were:

a) 29 January 2002: ‘Bone density is normal throughout’.

b) 26 June 2007: ‘No … significant bone or joint abnormality is seen’.

c) 11 April 2011: ‘There are no arthropathic changes at this stage’.

79. It was not until 31 May 2012 that the images recorded: ‘[T]here are moderate

secondary osteoarthrosis changes’.

80. Professor Smith’s report of 23 March 2015 denied that the ‘mark events’

indicators on the chart relied on by Dr Hocking to indicate that he had limited

time for conducting the arthroscopic procedure were indicators of the actual

surgery time. Accordingly, his view was that Dr Hocking had up to 90 minutes

for surgery, a period more than adequate to undertake the degree of bone

removal he posited. He remained firmly of that view despite cross-

examination.55 Professor Smith concurred with Professor Cundy that large

amounts of bone can be removed rapidly by means of a power burr. As he said

in evidence in response to Dr Hocking’s assertion about lack of time, the

amount of bone removed could be done, using a burr ‘in 15-20 minutes easy’.56

52 Transcript of Proceedings 18 March 2015 at page 11353 Transcript of Proceedings 18 March 2015 at page 12354 Transcript of Proceedings 18 March 2015 at page 11655 Transcript of Proceedings 24 March 2015 at pages 456-45756 Transcript of Proceedings 24 March 2015 at page 460

31

Dr McNicol

81. In a report dated 22 July 2014, Dr McNicol said that in his professional opinion

‘In order to affect a labral repair I would expect debriding of the acetabular rim

subjacent to the area to be repaired’. He noted that he had seen images 1-6

provided to him and said they were ‘isolated static images … generally of poor

quality’.

82. Dr McNicol said that following a Salter osteotomy, as had been performed on

Patient B when she was 2 years of age, in his experience the result of the

osteotomy and the attendant bone graft involved, ‘usually leads to an

irregularity of the bone and an associated bone bump immediately above the

acetabular margin but in the extra-articular region’.

83. In cross-examination, Dr McNicol conceded that, for the purpose of his report

of 22 July 2014, he should have addressed the reports of Professors Smith and

Cundy when answering the question whether Dr Hocking removed a significant

amount of bone from the acetabular rim, and that he had not done so.

84. He also conceded that he’d ‘been informed that there was a bony prominence’

and he had accepted that, relying on Dr Hocking’s second operation report and

that he had believed Dr Hocking when he said the second report was more

reliable than the first.57 He agreed that he was not relying on the first operation

report, and had not done so following his discussions with Dr Hocking.58

85. Dr McNicol also volunteered that he had discussed the operation with

Dr Hocking.59 He said he had done so also looking at the imaging and at models

of the pelvis, as well as the past history of Patient B, albeit he acknowledged

that he had agreed that ‘looking at isolated images can be exceedingly

misleading’.60

Dr Hocking

86. Dr Hocking said he encountered an extra-articular bump during the surgery, and

he maintained that:

57 Transcript of Proceedings 19 March 2015 at pages 193, 19558 Transcript of Proceedings 19 March 2015 at pages 194-19559 Transcript of Proceedings 19 March 2015 at page 19460 Transcript of Proceedings 19 March 2015 at page 194

32

This was the only part of bone that was removed, other than decortication, during the course of the operation. And as the tribunal can see, it is in a different location to the area that the board is claiming I erroneously removed at the time of Patient B’s operation.61

87. He also said the bump was ‘not inside the joint, nor is it on the acetabular rim’.62

His claim that the bone removal was ‘extra-articular’ was because he was

‘trying to distinguish from an articular pincer lesion’,63 and because he wanted

to establish that he had not removed bone from the acetabular rim. In support of

his view that he had not removed bone as suggested by Professor Smith,

Dr Hocking said the Hocking image 12/17, taken after traction had been

removed, showed ‘a degenerate but intact labrum’. He said ‘It is impossible for

this photograph to be taken if the area of bone that is alleged to have been

removed was removed during the operation’.64 It was also his evidence that to

remove the amount of bone suggested by Professor Smith would have taken

over 40 minutes and could not have been essayed during the actual operating

time available.65

88. Dr Hocking’s principal argument was that the hip degeneration after the

arthroscopy as indicated by x-rays on 31 May 2012 which showed ‘moderate

secondary osteoarthrosis’, was due to arthritic changes consequent upon ‘point

of point loading, particularly on the acetabular side’. As he said the arthritic

change to the left hip:

…is more pronounced than on the radiograph of the right-hand side. This indicates that this process was rapidly evolving. I concur that there has not been further subluxation but I would contest that the bone itself shows further changes that were present but to a lesser extent on the views of 31 May.66

89. Dr Hocking said, having viewed the Hocking image 12/17 containing

photographs 5 and 6:

… thus, it is my contention that the amount and the location of bone erosion occurred postoperatively and it was of a sufficient amount for

61 Transcript of Proceedings 20 March 2015 at page 27062 Transcript of Proceedings 20 March 2015 at page 27063 Transcript of Proceedings 20 March 2015 at page 28464 Transcript of Proceedings 20 March 2015 at page 27165 Transcript of Proceedings 20 March 2015 at page 27166 Transcript of Proceedings 20 March 2015 at page 273

33

Prof Smith to determine that a figure 7 graft was required for him to stabilise his acetabular component at total hip replacement surgery.67

Allegation 1: Literature

90. The Tribunal was provided with a considerable number of published papers

relating to hip arthroscopy. Those dated after February 2012 have generally not

been considered since Dr Hocking’s behaviour is to be considered by reference

to relevant standards at that time. The Tribunal, by relying on these papers, has

assumed that an orthopaedic surgeon such as Dr Hocking with a sub-speciality

in hip and pelvic surgery would keep up to date with the published clinical

findings of colleagues. The Tribunal is confirmed in that view by Dr Hocking’s

record of attending conferences in his speciality area, and by the sustained

period of retraining and supervision to which he has recently been subject.

Dr Hocking also conceded to the Performance and Professional Standards Panel

that he was aware of the literature.68 Accordingly the Tribunal has inferred that

Dr Hocking would have seen at least a selection of the nominated articles prior

to performing the arthroscopy on 15 February 2012.

91. The Tribunal accepts the view of the experts that hip dislocation following an

arthroscopic procedure is a combination of damage to the three major static

stabilisers of the hip being bony structures, the labrum, and the cover or capsule

of the joint. The orthopaedic literature contains warnings about the destabilising

effects on the hip of treatments which affect one or more of those three

stabilisers. A summary of the articles follows:

‘… isolated treatment of the labral lesion in the presence of underlying hip dysplasia may carry a high risk of failure to improve symptoms and function in the long term because the abnormal mechanics are not changed’. As a consequence, the article concludes: ‘Patients with hip dysplasia who undergo arthroscopic debridement of a labral tear need to be carefully watched, and earlier intervention with a periacetabular osteotomy should be considered’.69

‘… it is known that the labrum is an important structure that confers stability to the hip by increasing the volume of the acetabulum. Hence, it

67 Transcript of Proceedings 20 March 2015 at page 27268 Transcript of Performance and Professional Standards Panel

hearing, October 2013, 2269 Michael SH Kain et al ‘Periacetabular Osteotomy After Failed Hip

Arthroscopy for Labral Tears in Patients with Acetabular Dysplasia’ (2011) 93 Journal of Bone and Joint Surgery, Suppl 2: 57, 60

34

is intuitive to deduce that excision of labrum, particularly in patients with shallow sockets, is likely to compromise stability further. … Hence, we believe that labral excision in patients with symptomatic dysplasia, in addition to failing to control symptoms in a large number of cases, can also have a detrimental effect on patient outcome by further compromising the biomechanics of the hip and increasing the stress on the lateral region of the acetabulum’.70

‘Instability after hip arthroscopy is due to a number of factors, including excessive rim trimming, capsulotomy, overzealous labral resection, or inadequate labral repair’.71

‘Our case shows that catastrophic instability can result despite minimal disruption of the static stabilizers [bone, labral and capsuloligamentous tissue]… In patients with dysplasia, rapid, sustained degeneration can be expected with any degree of subluxation’.72

‘Bony hip instability may develop in relation to excessive bone removal from the acetabular rim. Different from soft tissue instability, excessive bone resection from the anterior acetabular rim may result in anterior hip dislocation’…. No bony resection must be performed in cases that have center-edge angles of 20 degrees or less as measured in the anteroposterior pelvis radiograph.73

‘Simple debridement of the deteriorated portion of the labrum is unlikely to accentuate this subluxation potential but great care must be taken in the debridement procedure, especially avoiding an overly zealous resection’.74

70 Javad Parvizi et al ‘Arthroscopy for Labral Tears in Patients with Developmental Dysplasia of the Hip: A Cautionary Note’ (2009) 24 The Journal of Arthroplasty No 6 Suppl 1, 110, 112

71 ‘Abstract’ for ‘Omer Mei-Dan et al ‘Catastrophic Failure of Hip Arthroscopy Due to Iatrogenic Instability: Can Partial Division of the Ligamentum Teres and Iliofemoral Ligament Cause Subluxation? (2012) 28 Arthroscopy: The Journal of Arthroscopic and Related Surgery, 440. This volume of the journal was not published until March 2012. However, it was accepted in December 2011 and it is reasonable to assume that it was available to the profession prior to its official publication. The parties referred to this article with no objection.

72 Omer Mei-Dan et al ‘Catastrophic Failure of Hip Arthroscopy Due to Iatrogenic Instability: Can Partial Division of the Ligamentum Teres and Iliofemoral Ligament Cause Subluxation? (2012) 28 Arthroscopy: The Journal of Arthroscopic and Related Surgery, 440,442

73 Victor Ilizaliturri ‘Complications of Arthroscopic Femoracetabular Impingement Treatment: A Review’ (2009) 467 Clinical Orthopaedic and Related Research 760

74 JWT Byrd et al ‘Hip Arthroscopy in the Presence of Dysplasia’ (2003) 19 Arthroscopy: The Journal of Arthroscopic and Related Surgery 1055, 1060

35

‘Case reports of subluxation and dislocation after arthroscopic hip surgery … highlight the potential negative impact of capsulotomy without closure in the presence of hyperlaxity or when normal osseous constraints are compromised’. That is because ‘Biochemical and clinical studies have consistently shown that the hip joint capsule plays an important role in maintaining stability of the hip joint’.75

92. Professor Cundy also quoted from two articles:

a) ‘… the reduction in bony containment in a dysplastic hip joint increases the probability of subluxation, especially where the acetabular labrum is trimmed excessively’ and ‘to minimise the possibility of hip instability, it is important not to reduce the stabilising factors (Table 1) over the hip joint too much, especially in a dysplastic hip joint’. 76

b) ‘No rim trimming is performed in femoro-acetabular impingement patients exhibiting a dysplastic acetabulum’, and Table 2 ‘Tips and Pearls to prevent iatrogenic hip dislocation’: ‘avoid rim trimming with dysplastic acetabulum’. In addition the article also noted that although ‘Most experienced hip arthroscopic surgeons do not perform routine capsular repair’ the author suggested that in patients at risk, capsular repair can help stabilize the hip.77

Allegation 1: Closing submissions

93. The parties’ closing submissions can be summarised as follows:

Board

a) Dr Hocking’s evidence was that his reports indicated that he had

recontoured the acetabular rim;

b) the evidence of Professors Cundy and Smith was that the bone had been

removed from the acetabular rim based on a comparison of the pre and

post-operative x-rays, in particular a comparison of images 1/13 and 5/13 of

exhibit A1. Dr Young also agreed with this;

c) the cause of the missing bone was not due to acetabular wear from the

grinding of bone on bone, due to activity on the part of Patient B. That

75 BG Domb et al ‘Arthroscopic Capsulotomy, Capsular Repair, and Capsular Plication of the Hip: Relation to Atraumatic Instability’ (2013) 29 Arthroscopy: The Journal of Arthroscopic and Relation Surgery 162, 165, 170

76 Benali et al ‘Hip Subluxation as a Complication of Arthroscopic Debridement’ (2009) Journal of Arthroscopy 405, 407

77 DK Matsuda ‘Case Report, Acute Iatrogenic Dislocation Following Hip Impingement Arthroscopic Surgery’ (2009) 25 Arthroscopy, 400, 403

36

suggestion was ‘based on an incorrect factual assumption as to Patient B’s

relative activity during this period’;

d) this submission was also based on the first operative report which was

contemporaneous and its contents were therefore to be relied on as

compared with the second report;

e) Dr Hocking’s claim that he only removed a bony impingement from the

extra-articular region was belated. That is supported by Dr Young’s first

expert report which records what he had been told by Dr Hocking and

refers to cutting off bone that might be a cam impingement, which

Dr Hocking said was not the kind of impingement present in Patient B;

f) Dr Hocking admitted that there was no reference in Dr Young’s first report

dated 9 September 2012, to his advising Dr Young that he had removed

any bone other than during the decortication of the acetabulum;

g) it was not part of Dr Hocking’s treatment plan of 19 August 2011 to

remove bone during the hip arthroscopy and had a bony impingement been

recorded, he would have seen it and recorded it as part of his treatment

plan; and

h) Dr Hocking engaged in conduct where the skill, judgment possessed and

care exercised by him in the process of the practice of his profession fell

below the standard reasonably expected of a health practitioner of an

equivalent level of training or experience and amounted to unsatisfactory

professional conduct.

Dr Hocking

a) Dr Hocking did not make an admission against interest in cross-

examination when he said he had exposed the underlying acetabular rim

‘and a pincer lesion was encountered’ and [t]he rim was recontoured’. He

denied that meant he had recontoured the rim itself. As he said ‘The rim is

not being a specific anatomical feature here’78 and ‘What I’ve done is I’ve

recontoured an extra-articular part of the hip which is irrelevant to

stability’.79 He pointed out there was a distinction between the ‘intra-

articular’ and the ‘extra-articular’ part of the acetabular rim;

78 Transcript of Proceedings 23 March 2015 at page 33779 Transcript of Proceedings 23 March 2015 at page 338

37

b) Dr Hocking did not remove significant bone from Patient B’s acetabular

rim. He resected a bump outside of the articular part of Patient B’s hip

joint, proximate to but not from her acetabular margin;

c) Dr Hocking’s evidence was that Photographs 5 and 6 of Exhibit A1 show

that the area of bone alleged by Professors Cundy and Smith to have been

removed, remained intact, and is visible at the end of the 15 February 2012

procedure. In contrast, Professors Cundy and Smith were not able to

explain where photograph 5 and photograph 6 were taken;80

d) Dr Hocking maintains that to have debrided a volume of bone this large

with an instrument as fine as an arthroscopic burr, would have taken in

excess of 40 further surgical minutes which would have taken him outside

the surgical time evidenced for the arthroscopy;

e) the bone removed from Patient B’s left hip acetabulum was a defect caused

after Patient B’s left hip subluxed, and some time after the 15 February

2012 hip arthroscopy;

f) according to Dr Young’s evidence the mechanism of subluxing

osteoarthritis, following hip arthroscopy, has three causes:

(i) if the capsulotomy incision, used to gain access to the joint for

the instruments, is not firmly closed and protected. In Patient

B’s case, the Performance and Professional Standards Panel has

already decided the Dr Hocking had no case to answer for not

repairing Patient B’s capsulotomy as it is standard practice

among hip arthroscopists;

(ii) loss of labral tissue; and

(iii) removal of bone from the roof of the acetabulum. Patient B

experienced the two most common causes – capsular weakness

and the loss of labral tissue;

g) the literature, in particular the Mei-Dan and Brick article, reported that

rapid clinical and radiographic deterioration can occur in the space of

months after hip arthroscopy.

80 Transcript of Proceedings 16 March 2015 at page 62 and 18 March 2015 at page 115

38

Allegation 1: Summary of evidence

94. There are four aspects of the question about the cause of the deterioration of

Patient’s B’s hip:

a) could the post-arthroscopy damage to her hip be due to two only of the

major static stabilisers, namely, the irrepairable labrum, and the failure to

suture the hole in the capsulotomy;

b) could the disclocation have been due to activity by Patient B causing

deterioration of the bone in a situation where two of the stabilisers had been

weakened;

c) was there sufficient evidence that the deterioration of the hip was due to

action taken by Dr Hocking; and

d) was there sufficient operational time for Dr Hocking to have removed the

quantity of bone alleged by Professor Smith?

If the response to (a) is yes, there is no liability in Dr Hocking since it is

accepted that the failure to repair the labrum was due to the pre-existing

state of the labrum and could not have been avoided; and the Board has

found that there is no case to answer about the failure to seal up the capsule

since not doing so is common practice in the profession.

(a) Was the deterioration of bone due to the effect of the capsulotomy and the failure to repair the labrum alone?

95. There is no dispute that Dr Hocking performed a capsulotomy to facilitate the

arthroscopy and also that he did not suture the capsule at the conclusion of the

arthroscopy. There is also no dispute that the labral repair failed due to the

damaged state of the labrum.

96. Dr Hocking maintains that the literature supports the possibility of rapid

arthritic change following subluxation due solely to malfunction of two of the

three static stabilizers of the hip joint, the failure of the labral repair and the

capsulotomy.

97. The Tribunal accepts that the papers referring to the impact of a weakening or

damage to one only of the stabilisers do not claim that there is definitive

39

evidence that this can lead to hip instability. Matsuda notes that in patients at

risk of hip dislocation, there are good reasons as a matter of caution to effect

capsular repair. Equally BG Domb et al conclude that ‘arthroscopic hip

surgeons should become facile with arthroscopic repair or plication techniques

to restore proper capsular integrity and tension when indicated’81. The Tribunal

notes, however, that the Domb article post-dates the events of

15 February 2012, and both articles point out that it is as yet unclear whether

capsular cuts left unrepaired affect instability.

98. None of the articles deal with the impact of damage or weakness in two of the

stabilisers. The article by Mei-Dan does indicate that ‘rapid, sustained

degeneration can be expected’ when all three static stabilisers are weakened and

that that can result from even ‘minimal disruption to the static stabilisers’.

Moderate arthrosis was apparent in Patient B by 31 May 2012, some 2.5 months

after the operation. The rapidity with which this change arose in Patient B,

suggests all three stabilisers were involved in her case.

99. That finding is supported by evidence from imaging prior to the arthroscopy

that there was no evidence of arthrosis prior to the surgery. That is consistent

with her youth. It would be unusual for a 14 year old to experience deterioration

of bone. As Professor Smith indicated, she was a ‘young, very fit, active young

lady. She had fantastic bone quality’ and she ‘had no evidence of any arthritic

change at all on her imaging studies prior to her arthroscopic surgery’. The

imaging prior to the arthroscopy also supports this finding.

100. Given the rapidity of the change in the period February 2012 to 31 May 2012,

the accelerated nature of the deterioration is more likely to have been due to a

combination of change to all three of the static stabilizers, rather than two only.

That finding is consistent with the literature which indicates that excessive rim

trimming coupled with a capsulotomy, and inadequate labral repair are likely to

lead to rapid hip instability particularly in patients with hip dysplasia.

According to Mei-Dan, even minimal disruption to the three static stabilisers

81 BG Domb et al ‘Arthroscopic Capsulotomy, Capsular Repair, and Capsular Plication of the Hip: Relation to Atraumatic Instability’ (2013) 29 Arthroscopy: The Journal of Arthroscopic and Relation Surgery 162

40

can lead to dislocation. That conclusion is also consistent with the findings by

Benali and Matsuda referred to earlier.

(b) Was the dislocation due to activity by Patient B where two of the stabilisers had been weakened?

101. Dr Hocking suggested that the rapidity of the deterioration was due to weight

bearing on the hip by Patient B following the arthroscopy. In other words, that

the cause of the missing bone was acetabular wear from the grinding of bone on

bone, due to activity on the part of Patient B. The Tribunal does not accept that

submission. The Tribunal notes that Patient B was asked by Dr Hocking to

remain on crutches ‘for comfort’, and for a prolonged period, according to

Dr Young’s 12 September 2012 report. She did continue to experience pain

immediately after the surgery as evidenced by her reluctance to engage in post-

operative physiotherapy. She consulted Dr Lees in March who referred her to

Dr Hocking due to the continuation of her pain. Having seen her on

20 March 2012, Dr Hocking recommended injection of a local anaesthetic and

use of steroid to speed up pain reduction.82 These events indicate that her hip

remained painful up to five weeks after the operation.

102. In a further letter to Dr Lees on 10 April 2012, Dr Hocking says ‘she is much

better now’ indicating pain reduction. However, a letter from her

physiotherapist, dated 4 May 2012, noted that Patient B reported on-going pain

and weakness in her left hip and that she could not walk the five minutes from

home to school. The physiotherapist also indicated he would need another five

weeks of treatment to achieve a satisfactory outcome. Professor Solomon noted

in his report of 2 July 2012, that she was still reliant on crutches when he saw

her at the end of June 2012. This history indicates that it is likely that her pain

continued until July 2012 when she underwent her total hip replacement and

that she used crutches throughout this period. The Tribunal finds accordingly

that use of crutches, particularly during the period from mid-February to

31 May 2012 when moderate osteoarthosis was identified, meant that

deterioration of Patient B’s hip was not due to the impact of weight-bearing on

her left hip.

82 Letter from Dr Hocking to Dr Lees, 23 March 2012

41

(c) Was sufficient bone removed from the acetabular rim by Dr Hocking to contribute to hip instability?

103. Dr Hocking’s first report stated that he had ‘recontoured the rim’. In evidence

he denied that the contour of the acetabular rim was altered, asserting instead

that the rim is a broad three dimensional area and the bone he burred was

anterior to and above the rim, about 1cm from the margin and could not have

contributed to hip instability. Dr Hocking did concede during the hearing that he

had decorticated bone on the acetabular rim other than his burring of the extra-

articular bump. The Tribunal notes that this decortication has variously been

described as ‘recontouring’ the rim, and freshening the bone, in preparation for

the PAO.

104. The experts did not agree on this issue. There is, however, evidence that the rim

itself was recontoured and a significant amount of bone removed. The evidence

of Professor Smith, Dr Solomon and Professor Cundy to this effect is as

follows:

Professor Smith

a) ‘Several of the available intraoperative photographs showed a large area

of debrided bone continuous with the hip joint itself. … Further evidence

that bone has been removed …is available by comparison of the

preoperative plain radiographs versus the post-surgical radiographs

which clearly demonstrate loss of acetabular rim bone’.

b) ‘The combination of the hip arthroscopy and associated capsulotomy

together with an extensive labral resection and removal of bone had

rendered a hip which was dysplastic to begin with and therefore at risk,

even more unstable leading to the hip migrating out of joint producing

point loading and subsequent degeneration’.

c) The burr within the joint was directed to an area of exposed bone in

continuity with the hip joint, the removal of bone was consistent with the

radiographs post-surgery which showed bone loss, and he had found a

corresponding bone defect when he did the hip replacement surgery.

d) Professor Smith also relied on the evidence from the first operation

report, the arthroscopy images, the x-ray, the CT scan and the MRI scan,

42

all of which he said were ‘consistent with removal of bone from the

acetabulum’.

e) He also said there is no bone that is protruding anywhere on any pre-

operative imaging.

f) ‘Contrary to your assertion that the reason that this hip came out of joint

was due to the capsulotomy, the real reason is bone removal. The

degree of bone loss following your arthroscopy is apparent when the

preoperative and postoperative radiographs are compared’.

g) The inescapable conclusion as to why [Patient B’s] left hip had come out

of joint and developed rapid arthritic change with total destruction of

joint surface was that the combination of the hip arthroscopy and

associated capsulotomy together with an extensive labral resection and

removal of bone had rendered a hip which was dysplastic to begin with

and therefore at risk, even more unstable leading to the hip migrating out

of joint producing point loading and subsequent degeneration.

h) Initially Dr Hocking did not provide me with all the radiographs taken

during the arthroscopy, but when I did see the remainder ‘At that point I

realised that bone had been removed during the arthroscopy’ something

Dr Hocking specifically denied when asked.

i) Dr Hocking ‘incorrectly represents the site of the defect and the site of

bone graft to the superior-posterior acetabular rim. This is a

misrepresentation, as reference to my hip replacement operation record

will clearly demonstrate. The defect was in the antero-superior

acetabular rim’.

j) ‘The site of the bone removal Dr Hocking presented in [Hocking] image

9/17 is antero-superior which is where the defect was found and the

bone graft placed. That description appears to correspond to the antero-

superior region of the hip joint’.

Dr Solomon83

Dr Solomon noted, following his examination of Patient B under

anaesthesia in early July 2012, that in his opinion the hip instability was 83 Dr Solomon did not provide evidence to the Tribunal. The Tribunal

has referred to his evidence because he had clinically examined Patient B under anaesthesia prior to the hip replacement surgery for the purposes of a report to Professor Smith

43

due to a combination of factors affecting the stabilising agents for the

hip including ‘bone resection’.

Professor Cundy

a) ‘… three of the images are consistent with the action of surgical bony

debridement of the acetabular rim’, and Hocking images 10/17 and

11/17 ‘confirm removal of bone from the acetabular rim’.

b) Given the location of the burr in the images, and referring to the first

operation report which states that ‘the rim was recontoured’, ‘it is

reasonable to … assume that this bone recontouring was performed with

an instrument similar to the burr as evidenced in the operative

photographs’.

c) ‘We’ve got strong suggestions from the intra-operative photos that bone

was removed. We’ve got evidence from comparing the pre-arthroscopy

and the x-rays done during the arthroscopy that bone was removed and

comparing those with the post-operative x-rays as well it also reflects

that bone has been removed from the acetabular rim beyond a simple

freshening up of the bone’.

d) ‘I consider it was inappropriate to remove the bone from the patient’s

acetabular rim especially. As stated in the ‘first’ operative report, the

labrum was found to be not suitable for repair prior to the described

bony rim surgery’.

e) In oral evidence Professor Cundy had responded ‘Yes’ to the question

‘Do you still consider that Dr Hocking removed bone from the patient’s

acetabular rim’.

105. As noted earlier, Dr Young and Dr McNicol admitted in cross-examination, and

stated in their reports that they had relied on conversations with Dr Hocking in

the opinions they provided in their reports. So although those opinions support

the view of Dr Hocking the Tribunal has given little weight to their evidence.

106. The Tribunal has relied on the evidence of Professor Smith, as one of the two

persons who has operated on Patient B’s hip, and in particular the evidence of

Professor Cundy because he was the only independent witness and the Tribunal

was impressed with the evidence he provided to it. Reliance on

44

Professor Smith’s evidence also means that the Tribunal has accepted that a

significant amount of bone had been removed from Patient B’s acetabular rim.

It may not have been the 3 cubic centimetres Professor Smith estimated, but as

the person who inserted a wedge of bone to supplement the missing bone, he

was in the best position to assess the amount and location of the bone deficit.

That evidence, according to Professors Cundy and Smith, was also supported by

the pre and post-operative imaging, and what Professor Smith found during hip

surgery on Patient B. Dr Solomon also confirmed, following his examination of

Patient B, that there had been ‘bone resection’, at a site which affected stability

of the hip.

107. Dr McNicol also noted that following a Salter osteotomy as performed on

Patient B, it ‘usually leads to an irregularity of the bone and an associated bone

bump immediately above the acetabular margin but in the extra-articular

region’. This evidence would support Dr Hocking if there was evidence that

this had occurred in Patient B. However, the reports by the experts interpreting

the imaging do not support such a bone development in Patient B.

108. Dr Hocking firmly denied that he debrided Patient B’s acetabular rim. His later

evidence was that his reference in his first operation report to having

‘recontoured’ the rim, meant no more than a ‘freshening of the bone’ and that

the pincer lesion to which he referred, was more accurately described in his

second operation report as ‘an extra-articular lump of bone’ removed. In his

favour, both his first report and the letter on 23 March 2012 to Dr Lees referred

to removal of a pincer lesion, which he later claimed was the bump. However,

the first report also referred to ‘recontouring’ the acetabular rim, and in his oral

evidence Dr Hocking confirmed he had undertaken bone decortication as well

as removal of the bump, that decortication being of the acetabular rim.

109. The Tribunal is not inclined to accept Dr Hocking’s denial that he removed

bone from the acetabular rim. He acknowledged that he had made a mistake in

his first operation report, and in the letter two weeks later to Dr Lees, in his

reference to a ‘pincer lesion’. Such a lesion is not present in a dysplastic hip.

Despite that later concession, he had earlier attempted to conceal his mistake.

The description of the second operation report as a ‘shorthand report’, and the

45

reference to a pincer lesion as a ‘misnomer’ appear to be deliberate attempts to

cover up his mistake. In addition, the removal of any reference in the second

report to ‘recontouring the rim’ suggests a further attempt by Dr Hocking at a

recasting of events. These changes cast doubt generally on the veracity of

Dr Hocking’s view of what happened during the arthroscopy. Professor Smith’s

evidence that Dr Hocking did not provide all the arthroscopic images to

Professor Smith either when discussing Patient B’s case, or when he handed

over her care contribute to that impression. Professor Smith’s evidence that

when he obtained the complete set of images and identified removal of bone

from the acetabular rim, but that Dr Hocking had denied this occurred, add to

this view.

110. In addition, the Tribunal is not minded to accept Dr Hocking’s revised version

of the record for a practical reason. As Professor Cundy pointed out, if the bone

removed was only above the acetabular rim, it would not in fact impinge on the

femoral head after the PAO, in which case there would have been no need to

excise it in preparation for the PAO. This supports the evidence that the site of

the lump of bone was closer to the acetabular rim than Dr Hocking alleged, and

raises the possibility that in ‘freshening up’ (decortication) of the bone at the

acetabular rim he removed more bone in this area than is indicated by use of

those terms.

111. That assertion is also at odds with the evidence of Professor Smith that he had to

reconstruct a portion of the acetabular rim with a wedge of bone from Patient

B’s femoral head. That evidence indicates that there was missing bone and as

the next finding indicates, it was not likely to have been caused solely by the

moderate osteoarthritic change which eventuated after the arthroscopy. That

view is also consistent with the earlier finding, based on the evidence of

Professors Cundy and Smith and Dr Solomon’s report that there had been

resection of bone on the acetabular rim as evident in the radiographs and as

visible to Professor Smith during the total hip replacement surgery. Dr Young

also indicated that even minimal removal of bone could have a destabilising

effect.

46

112. The Tribunal prefers to rely on the first operation report rather than the second

because of its contemporaneity, and the fact that it predated any attempt by

Dr Hocking to recast the events of 15 February 2012 in a more favourable light

in the face of probable disciplinary action concerning the complications faced

by Patient B.

113. Professor Cundy also noted that it can be inferred from the removal of the

reference in the second operation report to recontouring the rim that Dr Hocking

was aware of the consequences of more than minimalist bone removal in this

area of the hip in someone with a dislocated hip. His comment reflects the

warnings in the literature that for patients with dysplasia, there is a higher risk

of complications when there has been ‘excessive rim trimming, capsulotomy, or

labral repair’ and that even ‘minimal disruption of the static stabilizers’ can lead

to ‘catastrophic instability’84; that dislocation can occur due to ‘excessive bony

removal from the acetabular rim’ and that patients with a ‘centre degree angles

of 20 degrees or less should not be subject to bony resection’.85 Patient B’s

centre edge angle was according to the experts between 0 degree to 5 degrees,

and in other evidence up to 15 degrees. In addition, the papers state that patients

with hip dysplasia who undergo arthroscopic debridement ‘need to be carefully

watched’,86 and ‘labral excision in patients with symptomatic dysplasia, ‘can …

have a detrimental effect on patient outcome’ due to compromises of the

biomechanics of the hip.87 These reports signify that any weakness in any of the

three stabilisers of the hip for someone with hip dysplasia, much less with

disruption to two or even three of the static stabilisers, increases the risk of hip

dislocation.

84 Omer Mei-Dan et al ‘Catastrophic Failure of Hip Arthroscopy Due to Iatrogenic Instability: Can Partial Division of the Ligamentum Teres and Iliofemoral Ligament Cause Subluxation? (2012) 28 Arthroscopy: The Journal of Arthroscopic and Related Surgery, 440

85 Victor Ilizaliturri ‘Complications of Arthroscopic Femoracetabular Impingement Treatment: A Review’ (2009) 467 Clinical Orthopaedic and Related Research 760

86 Michael SH Kain et al ‘Periacetabular Osteotomy After Failed Hip Arthroscopy for Labral Tears in Patients with Acetabular Dysplasia’ (2011) 93 Journal of Bone and Joint Surgery, Suppl 2: 57

87 Javad Parvizi et al ‘Arthroscopy for Labral Tears in Patients with Developmental Dysplasia of the Hip: A Cautionary Note’ (2009) 24 The Journal of Arthroplasty No 6 Suppl 1, 110

47

114. In addition, since there was absence of bone on the acetabular rim when

Professor Smith undertook the total hip replacement, there must have been a

cause for that missing bone. In the previous section of the decision the Tribunal

has concluded that deterioriation of the bone was not due to arthritic changes

following active use of the hip. In that event, the absent bone is more likely to

be due to removal of bone whether on the rim or above and close to the rim, that

could only have been effected by Dr Hocking. As the evidence of

Professors Cundy and Smith indicated, and the arthrograms confirm, he was

using a burr during the arthroscopy and the purpose of that instrument is to

remove bone. That conclusion is supported by the evidence, which was not

shaken during cross-examination of Professors Cundy and Smith, supported by

that of Dr Solomon, the findings in the literature, and Dr Hocking’s first

operation report. The Tribunal was not persuaded by Dr Hocking’s later

evidence in particular due to his deliberate attempt to change his evidence on

this issue in the second operation report.

(d) Was there sufficient operational time to remove the quantity of bone

alleged?

115. Dr Hocking contended that he could not have removed the alleged quantity of

bone within the operational time. Professors Cundy and Smith dispute that

finding given the effectiveness of the burr, and the fact that at most it would

have taken between 15-20 minutes to remove the bone from the acetabular rim,

given Dr Hocking’s own evidence that he removed the lump of bone above the

acetabular rim in about 5 minutes. The Tribunal accepts the evidence of the

medical experts that removal of a considerable quantity of bone can be effected

relatively quickly and it would have been feasible to have debrided the

acetabular rim to the extent found in the time available.

Allegation 1: Conclusion

116. The Tribunal finds, given this evidence, that Dr Hocking did remove bone from

on, as well as above, the acetabular rim, and that removal increased the

likelihood of hip instability so that when the failure of labral repair and the non-

closure of the capsulotomy are added to the bone removal, that led to the rapid

deterioration of Patient B’s dysplastic hip post arthroscopy, with a resultant

need for a total hip replacement.

48

Allegation 2: Failing to disclose restrictions on registration

117. Dr Hocking contended that he did not disclose the restrictions on his registration

to Patient B’s mother as there was no legal requirement to do so, and he was

under the impression that the undertaking he had made would be removed in

good time after the arthroscopy for him to perform the proposed peri-acetabular

osteotomy. That impression he claimed was due to correspondence from the

Board, and telephone conversations with the Board, between himself and the

Board, and between his legal team and the Board.88 In particular he contended

that:

a) no provision of the Health Act 1993 (ACT) or the National Law required

him to disclose his undertaking to the Board to Patient B on 27 May 2011

or 19 August 2011 as AHPRA was yet to finalise its investigation;89

b) the investigation into the Board’s notification had only just begun,90 and

between 10 May 2011 and 1 August 2011 he was given every indication

that AHPRA’s investigations would be concluded quickly;

c) at the 27 May 2011 consultation there was no clear indication that Patient

B required an elective open hip pelvic procedure;

d) at the time of the 19 August 2011 consultation the Board’s investigation

had already exceeded three months and he anticipated by the time Patient

B would require a PAO, the investigation would be complete;91 and

e) if Patient B required urgent surgical treatment of the kind precluded by the

5 May 2011 undertakings, he was willing to transfer surgical cases and

did so when it became apparent that Patient B’s condition had deteriorated

and she required surgical intervention in June 2012.92

118. Patient B‘s mother maintained in her statements dated 10 July 2013 (at [5]),

25 September 2013, and 5 March 2015 that, at the time of her consent, she was

unaware of the undertaking. Dr Hocking confirmed that he had not disclosed his

undertaking to Patient’s B’s mother.93

88 Transcript of Proceedings 20 March 2015 at page 27789 Dr Hocking’s Closing Submissions [4.50]90 Dr Hocking’s Closing Submissions [4.48]91 Dr Hocking’s Closing Submissions [4.49], Transcript of Proceedings

20 March 2015 at page 27792 Dr Hocking’s Closing Submissions [4.51], [4.52]93 Transcript of Proceedings 20 March 2015 at page 277

49

Allegation 2: Consideration including evidence

119. The Tribunal accepts that there is no specific requirement in the Health Act

1993 (ACT) for disclosure to a patient of restrictions on registration.

Nonetheless, such an obligation could be encompassed within one of the Act’s

objectives, namely, ‘to ensure that … patients have information that is sufficient

to enable them to make informed choices’.94 Compliance with the Act’s

objectives may be imposed on a doctor in the individual agreement between the

doctor and the health service.95 However, the Tribunal was not provided with

this evidence.

120. The conditions on a surgeon’s registration or a voluntary undertaking are

required to be notified on the website of the Board, and as such can theoretically

be discovered by any patient.96 That also means there is a legal requirement for

notification of an undertaking to the world at large. There is no evidence that the

mother of Patient B accessed that website. Such notification does not impose

any legal obligation of disclosure by the health professional to individual

patients. At the same time, notification to a patient or consent-giver would be

required in order for there to be informed consent by that person, assuming that

the undertaking, as in Patient B’s case, had a bearing on the treatment to which

consent was required.

121. In addition, the Tribunal notes that the surgeons’ Code states: ‘A surgeon will

… be open and honest, particularly when the patient has suffered a complication

or adverse event’.97 Although the clause specifically refers to complications and

adverse events as an occasion for openness and honesty by the health

professional, that is only an example. Openness and honesty are generally

relevant to the development of trust between a health practitioner and patient, a

quality which is integral to the therapeutic relationship.

122. The Code also provides that ‘It is a breach of this Code … to undertake a

procedure that the surgeon is not … credentialed to undertake’.98 Although

Dr Hocking had not undertaken the surgery, this provision relates to minimising

94 Section 10(e) of the National Law95 Section 54 of the Health Act 199396 Section 225(k) of the National Law97 Clause 13.1.9 of the surgeons’ Code98 ‘Minimising Risk’, 14, 1

50

risk and is sufficiently broad to include all aspects of a surgical process,

including informing a patient about the nature of proposed surgery, who will

perform it, and any restrictions on performance of the surgery by the health

practitioner.

123. The National Law provides that standards such as those contained in the Codes

may be used in disciplinary proceedings ‘as evidence of what constitutes

appropriate professional conduct or practice for the health profession’.99

124. So there is a professional obligation to disclose, if relevant, any undertaking

restricting the ability of a surgeon to carry out surgical procedures, and a failure

to do so may be considered to amount to a breach of one or more of the

disciplinary standards which the Tribunal has to apply. The failure to disclose

restrictions can result in an adverse finding in legal proceedings. To that extent,

there is a legal obligation as well as an ethical and professional obligation to

disclose restrictions on practice when pertinent to proposed treatment.

125. The Tribunal rejects Dr Hocking’s assertion since it considers he was taking an

unnecessarily narrow, technical view, of any legal obligation to disclose.

Allegation 2: Expert evidence

126. The second, more significant, explanation was that Dr Hocking had an

expectation that his undertaking would not be in effect at the time of the

proposed second-stage treatment for Patient B. The Tribunal accepts that, as a

public patient undergoing elective surgery, there would be a considerable delay

in scheduling the second operation. It took six months, from August 2011 till

February 2012, for the arthroscopy to be scheduled. Dr Hocking was aware of

these delays.

127. Dr Young, in his letter of 9 April 2014, explained that ‘Dr Hocking was under

the belief that his restrictions were about to be lifted and that he would be able

to do the peri-acetabular osteotomy himself in the public sector at a time not too

distant from the hip arthroscopy undertaken’.

128. However, despite that reference to Dr Hocking’s explanation, Dr Young noted

in his report that he agreed with the statement of Professor Cundy that ’the 99 Section 41 of the National Law

51

failure to disclose the practice restriction … does not … [fully substantiate] the

standards expected by an orthopaedic surgeon by professional peers’.

129. Dr Young also said that he did not believe the failure to disclose was

professional misconduct or unprofessional conduct as:

Dr Hocking was working in a public hospital as part of the team looking after the patient. Dr Hocking was not looking after this patient as a private patient having the sole responsibility for the patient, but rather as a member of an orthopaedic department. … As it was the department looking after the patient, I do not see an obligation to disclose to the patient that he himself could not do the open surgery.

130. The Tribunal considers this suggested abdication of responsibility in relation to

a patient in the public health system is inappropriate, given the central role of

the surgeon for treatment of all patients, a view strongly supported by

Professors Smith and Cundy in their statements respectively of

3 September 2014, and 11 September 2014.

131. Professor Cundy, in a report dated 11 February 2014, acknowledged the

embarrassment for a health practitioner revealing that they had practice

restrictions. However, as he said, the existence of the restrictions is an

indication for the general practitioner to refer to another practitioner and, in this

instance, the general nature of the operation, a PAO, and the fact that it is

generally performed shortly after an arthroscopic labral repair, should have

prompted early arrangements to be made for such a procedure.

132. He also suggested that it was in the patient’s best interest for the hip arthroscopy

to be performed by the surgeon who was to perform the larger PAO procedure,

but noted ‘this may not always occur particularly if the surgeon specialising in

periacetabular osteotomy does not have particular skills in hip arthroscopy’.

He concluded ‘the earlier involvement of a colleague who had no restrictions in

practice would have been appropriate, particularly to schedule an early peri-

acetabular osteotomy within weeks or months of the labral report’.

133. Professor Cundy’s opinion, however, was that the failure did not ‘fall

substantially below the standard expected’.100

100 Report dated 11 February 2014

52

Dr Hocking’s evidence

134. Dr Hocking tendered evidence of the correspondence between himself, his legal

representatives, and the Board between May and August 2011 to illustrate that,

at the time he proposed the two-stage procedure for Patient B, he expected that

before the PAO would be scheduled his undertaking would no longer be in

force. He referred in particular to five letters either between himself and the

Board, or his legal representative and the Board, dated, 10 May 2011, 11 May

2011, 24 May 2011, 20 July 2011 and 18 August 2011 which he claimed

supported that belief.101

135. His evidence was that at the 27 May 2011 consultation with Patient B’s mother

the context was that the PAO operation was only ‘potential’ and hence there

was no need for disclosure at that time.102 By the time of the consultation on

19 August 2011, Dr Hocking’s evidence was that he had again been assured by

the Board the previous day that there would be an outcome shortly. At the same

time, the Board’s Minutes of 13 October 2011 record that at its 18 August 2011

meeting, the Board had rejected a request by Dr Hocking to revise the

undertaking,103 and by email from his legal representative, at noon on

19 August 2011, Dr Hocking was informed that the application has been

refused.104

136. Dr Hocking’s ‘Further Statement’ dated 20 February 2013 said that ‘Between

May and September 2011, the Board did not provide me with any indication as

to the progress of the investigation being undertaken by Ms Bjerring-Leyland’

[the Board’s investigator].

137. Dr Hocking was cross-examined on the whole of his evidence. He said he

believed not only that he was going to get an expeditious decision, but that the

restriction on doing a periacetabular osteotomy was about to be lifted.105

138. He conceded, however, in cross-examination, in relation to the documents on

which he was relying to illustrate his expectation, that ‘20 of the 25 documents

101 Dr Hocking’s Closing Submissions [11]102 Dr Hocking’s Closing Submissions [13]103 Documents Related to Disciplinary Action against Dr RA Hocking, 32104 Tender Bundle for Cross-examination, 129105 Transcript of Proceedings 23 March 2015 at page 357

53

did not give rise to the state of mind he claimed to have at the time’. 106

In relation to the five documents he initially said gave rise to the expectation, he

accepted that no reason was given for the expectation in two of the documents;

in relation to the others, he eventually agreed that the time frame for an

assessment arranged by the Board was either indeterminate or did not support

his state of mind. In the result, Dr Hocking accepted that a particular letter from

the Board dated 24 May 2011 which referred to the matter being dealt with

‘expeditiously’, had also said that the matters were complex, needed to be

investigated and the implication was that this could take some time.107

139. Dr Hocking had also conceded, in relation to a question posed to him by the

Performance and Professional Standards Panel at its hearing on

18 October 2013, that it would have been better to have revealed the restrictions

on his ability to perform the PAO at the time he obtained consent to the two-

stage procedure.108

140. In his closing submission, Dr Hocking’s counsel suggested that as at

19 August 2011, the arthroscopy was planned for some indeterminate time in

the future, Patient B being a public patient. Accordingly as the submission said

‘It is a counsel of perfection, informed by hindsight, to impose on Dr Hocking

an obligation that he should have discussed the undertaking in the circumstances

as they were as at 19 August 2011’.109

141. The Tribunal notes that the surgeons’ Code states that it is for a surgeon to

‘refer a patient when the best procedure for the patient is not within the scope of

practice of the surgeon’,110 and that the surgeon should ‘always act in the best

interests of [the] patient.111 Dr Hocking should have appreciated that it might not

be within the scope of his practice to undertake a PAO following the

arthroscopy. To obtain the consent of Patient B and her mother to a treatment

plan which Dr Hocking might not be able to perform was not to ‘act in the best

106 Transcript of Proceedings 23 March 2015 at pages 359, 361, 363- 364, 370, 372- 374, 376-378, 380. See also Sch 1 to Board’s Closing Submissions

107 Transcript of Proceedings 23 March 2015 at page 369108 Transcript of Proceedings 23 March 2015 at pages 381-382 109 Dr Hocking’s Closing Submissions [4.54]110 Clause 2.1.1 of the surgeons’ Code111 Clause 3.1.10 of the surgeons’ Code

54

interests’ of Patient A, not least because, as Professor Cundy indicated (see

earlier), another clinician might not have decided to treat Patient B in the

manner proposed.

Allegation 2: Conclusion

142. Given the facts and the concessions made by Dr Hocking in cross-examination,

the Tribunal finds Dr Hocking must have been aware that until the investigation

was complete, his restrictions on practice would not be lifted and these facts

cast doubt on the reasonableness of his expectation at that time. Accordingly,

despite his closing submission on this issue, and given the known delays in

Board and public hospital processes, the evidence on which Dr Hocking relied

was insufficiently substantial to satisfy the Tribunal that Dr Hocking could

claim he had a reasonable belief, by August 2011, that the undertaking would

not be in place at a time when he might reasonably expect to perform the PAO.

143. The Tribunal is satisfied that there was a legal, ethical, and a professional

obligation to inform Patient B of the undertaking. Assuming the findings

following the arthroscopy confirmed the previous imaging, a PAO would be

required for Patient B. Given his undertaking, and likely time-frames for its

removal, the undertaking restricted Dr Hocking’s ability to perform the second

stage of the proposed treatment. In those circumstances, Dr Hocking should

have referred to the restriction so that another surgeon could have been chosen.

The beneficial consequence would have been that there may have been a

speedier and possibly an alternative approach to treating Patient B. Sharing that

information may also have affected the consent of the mother of Patient B,

another reason supporting the need to disclose.

Allegation 3: Creation of second operation report

144. Dr Hocking contends that the second operation report of the hip arthroscopy on

Patient B was a retrospective account of the procedure created for his own

benefit, as an aide memoire, on the advice of senior colleagues, and the

document was not placed on the patient’s record, so there was no case to answer

in relation to this allegation.

55

Allegation 3: Background

145. On 15 February 2012 Dr Hocking created an operation report (first operation

report) of the hip arthroscopy performed on Patient B that day. The relevant

details are set out in paragraph 28 above.

146. In about June 2012, when it became clear that there were complications

following the arthroscopy performed on Patient B, Dr Hocking consulted

Dr McNicol and Dr Gillespie. At a meeting on 15 June 2012, they advised him

to write a more detailed account of the operation. Dr Hocking’s evidence was

that he had done so the following weekend, which would have been in the

second half of June.112 This report has been referred to as the second operation

report. The relevant parts of this report are set out above in paragraph 29.

Allegation 3: Consideration including evidence

147. The second operation record, on its face, appears, from its format, to be an

operation report. For example, it contains Dr Hocking’s letterhead, the name of

the patient with her date of birth, the names of the surgeon, the anaesthetist, and

the name of the doctor assisting, and a reference, at the end, to the immediate

post-operative state of the patient and Dr Hocking’s recommendation that she

attend physiotherapy. Tellingly, the only date on the document was the date of

the operation. To all intents and purposes, despite not being addressed to the

general practitioner, the report was a genuine post-operative report.

148. Even allowing for the format to be due to Dr Hocking’s use of a template for the

report, the failure to indicate anywhere on the document the date it was

produced, raises an inference that the report was not a mere ‘memory-jogger’ as

Dr Hocking asserts. Moreover, the inference is heightened by the circumstances

in which the report was compiled – possible disciplinary proceedings – and the

fact that it contained accounts of key aspects of his 15 February 2012

arthroscopy at odds with the record in the contemporaneous first operation

report.

149. One difference was that the second record was 2.25 pages in length, as

compared to the original report, the operative detail of which was, at most, half

a page. Not only the length of the report, but the description of the bone 112 Transcript of Proceedings 23 March 2015 at page 284

56

removed is different. There is an attempted explanation for the incorrect

reference in the first report to a ‘pincer lesion’, and there is no reference in the

second report to recontouring the acetabular rim, as referred to in the first

report.

150. Dr Hocking told the Tribunal that the reference to pincer lesion in the first

operation report was a mistake because he had used a template that contained a

standard reference to a pincer lesion which he failed to delete.113 The Tribunal

was advised by counsel for Dr Hocking that the template in its February 2012

form is no longer in existence, so this assertion could not be corroborated.114

151. The second operation report under ‘Surgical Procedure’ states, following a

reference to the repair of the labrum:

Having lifted the capsule off the anterior margin of the acetabulum an extra-articular lump of bone was identified protruding from the anterior acetabulum. This is seen in image 3. This same lump is identified on the preoperative standing false profile view, proximal to the joint. This lump was then removed with the burr in preparation for the peri-acetabular osteotomy (which would be the next planned procedure). This lump has been referred to as a pincer lesion in the shorthand operation report as no other abbreviated description exists for such a lump. The lesion does not truelly (sic) fit the accepted definition of a pincer lesion and thus calling it a pincer lesion is a misnomer in the shorthand operation report. … Image 4 also shows in the foreground the remnant of the acetabular labrum at the margin of her acetabular rim indicating that the contour of the acetabular rim not altered by the burr as the labral remnant remained in position. (Tribunal’s emphasis)

152. In his evidence Dr Hocking accepted that the emphasised words in the previous

paragraph were contrary to his evidence that the reference to a pincer lesion was

a mistake. He accepted that the emphasised words reflected a deliberate choice

in the absence of another abbreviated description.115 The Tribunal finds that

Dr Hocking failed to give a credible explanation for his claim that the reference

to a pincer lesion was an innocent mistake.

153. The authenticity of the account given in the immediate aftermath of the

arthroscopy is underscored by the letter Dr Hocking wrote to Patient B’s general

113 Transcript of Proceedings 23 March 2015 at page 341114 Transcript of Proceedings 16 March 2015 at page 28115 Transcript of Proceedings 23 March 2015 at page 342, Dr Hocking’s

Closing Submissions [66]

57

practitioner, dated 23 March 2012, in which he observed ‘In terms of the hip

arthroscopy itself, she had a very minor procedure where I debrided the labrum

and debrided an extra articular Pincer Lesion’.

154. Dr Hocking’s counsel said at the hearing that ‘Dr Hocking has openly admitted

that that initial operation note was not accurate’,116 a concession which further

supports the assessment that the second report was an attempt to correct the

record and thereby absolve Dr Hocking from potential adverse consequences for

the complications which occurred in relation to his treatment for Patient B.

Allegation 3: Expert evidence

155. In the joint report in relation to Patient B provided by Dr Cairns, after the

conference of medical experts, the experts agreed that the creation of an

aide memoire on the advice of Dr McNicol and Dr Gillespie was not

unreasonable, and was prudent in the circumstances. However, the experts were

unable to agree as to the possible motivation underlying the statements in the

second operation report prepared some four months after the first report, or the

validity, accuracy and reliability of the second operation report.

That disagreement was based on the apparent discrepancies between the first,

contemporaneous, operation report and the later record. Dr McNicol preferred

the second operation report. Dr Young preferred Dr Hocking’s word from the

telephone calls between the two, which supported what was in the second

report, and Professors Smith and Cundy preferred the first operation report.

156. Dr Young said in his report dated 9 April 2014:

In relation to the Board’s allegation that Dr Hocking created a second report, it would be my advice to Dr Hocking also that he needed to give a second report to expand on the details of his first report. … Given that a complication had occurred there was a definite need for Dr Hocking to explain exactly what had gone on at the time of the hip arthroscopy so that others could understand why the complication might have arisen and learn from that.

157. In a report dated 11 September 2012 Dr McNicol said that the advice he gave in

2012 to prepare an ‘aide-memoir’, had been because he anticipated that the

matter might be referred for review. As he indicated in his later, 24 July 2014,

116 Transcript of Proceedings 23 March 2015 at page 55

58

statement, he considered the report could be needed if the circumstances were to

be reviewed not only by the M&M [Morbidity and Mortality] Committee, but

also the Clinical Privileges Committee of The Canberra Hospital, or by the

Board, in disciplinary or related proceedings. Dr Gillespie provided a similar

explanation in a statement of 13 August 2014.

158. In a report of 22 July 2014 Dr McNicol gave the history of the second operation

report and then observed:

The ‘aide memoir’ is not a substitute operation report that was filed or used to replace the operative report in this patient’s records. It was a detailed report that was filed in Dr Hocking’s personal case notes, which might be used in the future to refresh his memory as to the details of the hip arthroscopy. As events have unfolded that was a prudent thing for Dr Hocking to have done.

159. At the same time he also said:

It is entirely within Dr Hocking’s right to create a second document. That document however has not been appropriately labelled as an amendment to an operation report or an aide-memoire. It is not clearly documented when that second report was formulated. The second report differs substantially from the first contemporaneous report.

160. Professor Smith, in a report dated 3 September 2014, said of the two records:

The initial Operation Report clearly documents a pincer lesion and that the acetabular rim was re-contoured such that the pincer lesion would not impinge. This operation record is contemporaneous. This record makes clear reference to a pincer lesion and surgery to remove a pincer lesion. A pincer lesion is an entity which has a clear definition. A pincer lesion did not exist in [Patient B’s] case. If Dr Hocking subsequently claims that he did not perform surgery on a pincer lesion, but another lesion, why is this not documented appropriately in this first, contemporaneous report?

161. He concluded that Dr Hocking was within his rights to make the later record,

but said ‘such documentation should be appropriately dated, and appropriately

titled with an appropriate preamble’. As he said, had he done so, it would have

been clear that the document was not an operation report.

162. Professor Cundy, in a report dated 7 December 2012, said of the two reports:

The shorter version has been referred to by Dr Hocking as a ‘short hand operative report’ and the second document provides a more complete technical description of the operative procedure … This second operative

59

report is particularly detailed and could be interpreted as anticipating complications particularly with considerable in depth discussion in relation to the potential misnomer of a ‘pincer lesion’ contained in the short hand report as well as reference to the femoral head being reduced after traction was released and reference to ‘no immediate concerns were raised as to difficulty with mobilisation’. The longer operation report would appear to have been dictated at least the day after the surgery by way of the first sentence of the last paragraph in the longer operation report.

In addition, it is noteworthy that Dr Hocking indicated in the 5th

paragraph of his [second] operative report that ‘… the contour of the acetabular rim was not altered by the burr as the labral remnant remained in position’. This would appear to indicate that Dr Hocking was aware of the potential dangers of removing bone from the acetabular rim in a patient with hip dysplasia.

163. In a further report dated 11 February 2014, Professor Cundy said of the second

report:

It is accepted good practice to write contemporaneous medical notes, ideally at the time of consultation, immediately after the consultation/operation or at the end of the day’s work … [or] next day. Beyond such reasonable time, recall of the specifics may become more distant and the reliability of one’s records are diminished. In this regard, provision of an even more detailed operation report written 3 or 4 months later is not acceptable practice amongst Orthopaedic Surgeons and is below the standard expected.

164. He went on:

I feel that this conduct [the report 3-4 months later] does fall substantially below the accepted standard for a number of reasons.

Firstly, the more detailed report, assuming it was completed 3 or 4 months later, provides a notable and significant increase in detailed information which could be interpreted as reflective of the then known complications which ensued with [Patient B]. This would appear consistent with a breach of the RACS [Royal Australasian Code of Surgeons] Code of Conduct.

Secondly, I would expect an Orthopaedic Surgeon to not ‘back date’ an operative report or medical notes. Indeed, it is usual training and practice in the Hospital setting to not back date notes and, if there is a need to back date a note for a particular reason, that the date and time that the note is written is clearly indicated in the documentation and that the note is not contemporaneous.

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165. In a report dated 11 September 2014, Professor Cundy restated his opinion that

the provision of a second, more detailed operation report three or four months

later falls substantially below the expected standard for an orthopaedic surgeon

with equivalent training and experience to Dr Hocking.

166. Professor Cundy identified the reasons for that opinion as follows:

The ‘second’ operative report, completed almost four months later (and also dated 15 February 2012, the date of surgery), describes a separate lesion which was not mentioned in the ‘first’ operative report and indicates that this lump was outside the hip joint margins and, in fact, describes this differently as an ‘extra-articular lump’. The ‘second’ operative report also goes into a high level of detail in relation to image 4 … indicating that the contour of the acetabular rim was not altered by the burr as the labral remnant remained in position. This is somewhat at odds with the ‘first’ operative report which makes no mention of this extra articular lump and is quite specific that the acetabular rim was recontoured to avoid later impingement after a planned PAO. I again express my concerns in relation to the specific details contained with the ‘second’ operative report which provide substantial additional information which are pertinent to the subsequent complications encountered in [Patient B’s] hip. The ‘second’ operative report could be interpreted as being predictive of the subsequent catastrophic dislocation of her hip joint. …

Whilst it is reasonable to collate one’s opinion and thoughts in relation to a patient’s management, such documents should be appropriately dated, include an explanatory covering note and importantly not be able to be misconstrued as a self-serving altered medical record or to be misleading.

Dr Hocking

167. In his 29 January 2013 statement for the Board, Dr Hocking admitted use of

‘pincer lesion’ in the first operation report was a mistake. He also conceded that

his second operation report was ‘for the purposes of providing a more

comprehensive report … of the operation’ and to ‘explain my reference to a

pincer lesion’. Through his senior counsel at the Panel hearing he had also said

of the second report: ‘the reason for the second report was that at that time it

became clear that he was going to have to hand over the care and conduct of this

patient to another doctor’. This was a reference to Patient B becoming a patient

of Professor Smith on or about 6 June 2012.117 Under questioning at the Panel

hearing, however, he acknowledged that the reason he produced a second report

117 Transcript of Proceedings 23 March 2015 at page 353

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was that ‘people would latch onto’ the mention in the first report of his mistaken

reference to a ‘pincer lesion’.118

168. At the Tribunal hearing, Dr Hocking explained the purpose of the second

operation report in three ways:

(i) that the words ‘pincer lesion’ were in a template he used for doing post-

operative reports and by accident, had not been deleted;119

(ii) as an abbreviated expression because there was no other way of

describing the lesion,120 a view he repeated in his closing submission

where he said the use of pincer lesion was due to the absence of an

appropriate word in a newly developing area of arthroscopy;121 and

(iii) that there had been no appropriate language on his template to describe

this bony bump. The result he said had ‘led to significant confusion’.122

169. Also, at the hearing he said the document was never intended to be a post-

operative report since he had never placed it on the patient’s file and it was

intended only to go on his medico-legal file. As such it was intended solely as a

memory jogger for himself. However, by accident a member of his staff had

included it in a bundle of documents which went to the Board for its hearing and

at that point, it became more widely known.123 He also affirmed that in his

documents for the Panel he had said:

The purpose of the aide-mémoire was so that I could revisit that report and use that report to help me prepare submissions, prepare reports, prepare for a discussion with the panel. The purpose of the report was not to be given out to other members of my profession, or in fact any profession. It was for my own reading.124

170. That was consistent with his statement of 16 February 2015 for the purposes of

this hearing where he said that:

I wrote the ‘second operation report’ at a time in my professional career when the Board had only just completed a 12 month investigation into a

118 Transcript of Proceedings 23 March 2015 at page 350-351 119 Transcript of Proceedings 23 March 2015 at page 336120 Transcript of Proceedings 23 March 2015 at page 341-342121 Dr Hocking’s Closing Submissions [15]122 Transcript of Proceedings 20 March 2015 at page 280123 Transcript of Proceedings 20 March 2015 at pages 310-311 124 Transcript of Proceedings 20 March 2015 at page 310

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separate matter, and at or around 1 June 2012, had proposed to impose conditions on my registration that would significantly impede the way that I was able to practice (sic) my profession’.

171. He also said in that statement ‘I never held out the ‘second operation report’ to

be a contemporaneous record of the procedure that I performed on

15 February 2012’.

172. Dr Hocking conceded in cross-examination that he wrote the second report to

clear up any misunderstanding by the Board.125 However, that purpose was not

reflected in his documents or evidence at hearings, as he agreed. For example,

he had not attempted to explain the intended use in any of his documents to the

Board, including to its Performance and Professional Standards Panel. At the

Tribunal, he had not clarified the misunderstanding in his Tribunal affidavit

other than saying the second operation report was prepared ‘for the purposes of

providing a more comprehensive report of the operation’,126 and he

acknowledged that his counsel had not referred to its intended use in his

opening submission to the hearing.127

173. Dr Hocking agreed that his failure to take steps to explain these

misunderstandings created by the second record was a mistake on his part, but

said that when the document became an issue, the reason for its production

‘became impossible to explain.128 He attributed his failure to attempt to correct

the wrong impression about the second operation report as the fault of his

solicitors.129 He did concede however, that the proper thing to have done was to

clear up the misapprehension.130

174. Dr Hocking was also cross-examined on earlier statements he had made about

his accuracy of report-writing and meticulous keeping of records. In response he

said he made ‘every attempt to be as accurate as I can in the operation reports

that I write’ but he could not be absolute about that promise.131 Later he denied

that his motivation for writing the report was because ‘it might lead ultimately

125 Transcript of Proceedings 20 March 2015 at pages 302, 304-305, 309 126 Transcript of Proceedings 23 March 2015 at pages 335, 341127 Transcript of Proceedings 23 March 2015 at page 349128 Transcript of Proceedings 20 March 2015 at page 312129 Transcript of Proceedings 20 March 2015 at page 314130 Transcript of Proceedings 20 March 2015 at page 315131 Transcript of Proceedings 20 March 2015 at page 296-297

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to a significant impediment on the way that you are able to practise your

profession’. Instead he said his motivation was ‘Justice’.132

Allegation 3: Standards for records

175. The doctors’ Code specifically states that good medical practice involves

making records at the time of the events, or as soon as possible afterwards’.133

Similarly, the surgeons’ Code says that ‘The surgeon will ‘Maintain legible,

contemporaneous patient notes etc’,134 and that ‘It is a breach of the Code to

‘Falsify records at any time’ and to ‘Alter records after an adverse event’.135

176. The emphasis on the probative value of contemporaneity for the purposes of

good record-keeping was denied by Dr Hocking at the hearing. He justified that

denial: ‘Because [he said] the surgeon can remember the operation, and

specifically operations that are unusual, for quite some time’.136 At the same

time he accepted that he had presented evidence to the Panel which stated that

he was a person who was meticulous about preparing contemporaneous and

accurate reports, on the assumption that this was good medical practice. He also

acknowledged that any delay in producing operation reports could be

inconsistent with the ‘Personal reflections’ segment of a statement he made to

the Board on 19 September 2011 in which he said he ‘will be careful to include

relevant information in the operation report and the record’.137

177. In response to a question from the Tribunal, Dr Hocking said he would have

conducted some 240 surgical operations in the period between

15 February 2012 and mid-June 2012. He also affirmed that the majority of

those operations were complex. Dr Hocking acknowledged, in an email to

Dr Balakumar of 12 September 2013, of the presumably more interesting or

complex cases he had taken to Melbourne for discussion with Dr Young and

Dr Balakumar in October 2012, that ‘I am struggling to remember all that was

said about every case’. In other words, despite his claim to be able to remember

details of operations, particularly complex ones, in this email he concedes that

132 Transcript of Proceedings 20 March 2015 at page 300133 Clause 8.4.5 of the doctors’ Code134 Clause 8.3 of the doctors’ Code135 Clause 8.3 of the doctors’ Code136 Transcript of Proceedings 20 March 2015 at page 292137 Transcript of Proceedings 20 March 2015 at page 296

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even he has difficulties remembering details of such cases some time after the

event.

Allegation 3: Conclusion

178. The Tribunal accepts Dr Hocking’s evidence that the second operation report

was created after the meeting on 15 June 2012, probably prior to the end of

June. His evidence, coupled with the anxiety he evinced in having several

conversations about the matter with Dr Gillespie and Dr McNicol, culminating

in the meeting on 15 June 2012, support the date being in the second half of

June, rather than later as suggested by the Board.

179. On balance the Tribunal considers that it is unlikely that Dr Hocking was able to

recall the detail of Patient B’s particular case, some four months later, with the

degree of precision and accuracy he asserts. His own evidence also underscores

the importance of records of practitioners being made contemporaneously,

consistent with the practices required by the two relevant Codes.

180. That finding has consequences. It means that Dr Hocking’s production of a

second record of the operation was made principally for use in possible

proceedings, and was designed to cover up a mistaken reference to ‘pincer

lesion’ and to present in a more favourable light what steps he undertook during

the arthroscopy. The attempt at a cover-up diminishes Dr Hocking’s credibility

in relation to this matter. In addition, it means that Dr Hocking’s record keeping

falls below the standards in both the doctors’ Code and the surgeon’s Code. His

attempt to alter the record is also a breach of the surgeons’ Code.

181. Those standards reflect the fact that the practice of medicine requires accuracy

in reports. Errors in reports and falsification of reports are inappropriate in a

surgeon since a post-operative report is relied on by others in their subsequent

care of patients and accuracy is paramount. So to describe the first report as a

‘shorthand report’ and to acknowledge that it has errors is not the behaviour

expected of a competent and responsible professional.

182. The experts, in their joint report, disagreed as to the possible motivation

underlying the statements made within the latter report. The joint report also

said:

65

The experts disagree as to the validity, accuracy and reliability of the document, based upon the apparent discrepancies as compared to the contemporaneous operation report formulated at the time of the surgery, some four months before the latter ‘aide Memoir’ also dated 15 October (sic) 2012.

183. The disagreement of the experts as to the motivation mirrors the disagreement

between those experts generally depending on whether they are supporters of

Dr Hocking, or are critical of his actions. With the exception of Professor

Cundy, the Tribunal has taken this into account when evaluating the weight of

the evidence provided by the experts.

184. Dr Hocking variously said of his motivation, the mistaken reference to a ‘pincer

lesion’ and of the changes between the two reports, that these were due to:

(i) a shorthand description of ‘pincer lesion’;

(ii) there were no other abbreviations of the expression;

(iii) because he had neglected to take the term out of his template;

(iv) to provide an explanation for people who would latch onto his mistaken

reference to a ‘pincer lesion’;

(v) in order to prepare a detailed handover note for the surgeon who took over

care of Patient B;

(vi) in order to have evidence assuming the matter came up at review hearings;

and

(vii) that he had never intended to use the report in his defence. The variety of

explanations given by Dr Hocking for the discrepancies between the two

reports means the Tribunal has been disinclined to rely on his evidence on

this issue.

185. Dr Hocking’s closing submissions contended that ‘any findings as to his credit

… cannot be met by the material advanced by the Board from cross-

examination’. That does not prevent a finding, which the Tribunal makes, that

Dr Hocking deliberately prepared a second report in order to have a detailed

account he could use in possible proceedings, and that the second report was an

66

account which presented his actions on 15 February 2012 in a more favourable

light. He should not have attempted to deny this purpose as he did, for example,

in his statement of 19 February 2014. The Tribunal is not prepared to dismiss

this allegation as requested by Dr Hocking particularly given the standards

imposed on health practitioners in relation to production of their records.

OR 13/48: Specific law to be applied

186. Part 8 of the National Law (sections 138 to 207 inclusive) is entitled 'Health,

performance and conduct'. Under the relevant provisions of part 8, a person may

notify AHPRA if, relevantly:

(a) a 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; or

(b) the knowledge, skill or judgment possessed, or care exercised by, a practitioner in the practice of the practitioner's health profession is, or may be, below the standard reasonably expected.

187. AHPRA must then refer the notification to the Board, which makes a

preliminary assessment of the matter. The Board can then either dismiss it or

further investigate it. Once the Board has investigated the matter, it is then open

to the Board to take no further action. If, however, the Board reasonably

believes the way a practitioner practises the health profession, or the

practitioner's professional conduct, is or may be unsatisfactory then, subject to

section 193, the Board can either deal with the matter itself or constitute a

performance and professional standards panel to which the matter is to be

referred.

188. Section 193(1) of the National Law relevantly provides as follows:

Matters to be referred to responsible tribunal

(1)A National Board must refer a matter about a registered health practitioner or student to a responsible tribunal if  

(a)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 …

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189. In this instance, in relation to the allegation that Dr Hocking ‘debrided [Patient’s

B’s] left acetabular rim’ the panel found ‘there was unsatisfactory professional

conduct which may constitute professional misconduct’, and the Board referred

the matter to the Tribunal.

190. The expression 'professional misconduct' is defined in the National Law as

follows:

professional misconduct, of a registered health practitioner, includes—(a) unprofessional conduct by the practitioner that amounts to conduct

that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

(b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

(c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.

191. The expression 'unprofessional conduct' is defined in the National Law. Only

relevant elements of the definition follow:

unprofessional conduct, of a registered health practitioner, means professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers, and includes—(a) a contravention by the practitioner of this Law, whether or not

the practitioner has been prosecuted for, or convicted of, an offence in relation to the contravention; and

…192. The expression 'unsatisfactory professional performance' is defined in the

National Law as follows:

unsatisfactory professional performance, of a registered health practitioner, means the knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the health profession in which the practitioner is registered is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience.

68

193. The expression professional misconduct is defined to include unprofessional

conduct by the practitioner that amounts to conduct that is substantially below

the standard reasonably expected of a registered health practitioner of an

equivalent level of training or experience. The definition is inclusory and is not

an exhaustive statement of that term. Thus, 'professional misconduct' under the

National Law can include professional misconduct which does not fall within

any of the paragraphs in the definition of that term, for example conduct which

is characterised as professional misconduct or its equivalent under earlier

vocational disciplinary legislation.138

194. As McLure P noted in Bernadt v Medical Board of Australia

[2013] WASCA 259 at 23, professional misconduct has both a performance

component (conduct that is substantially below the standard reasonably

expected of a registered health practitioner of an equivalent level of training or

experience) and a conduct component (conduct whether occurring in connection

with the practice of the practitioner's profession or not, that is inconsistent with

the practitioner being a fit and proper person to hold registration in the

profession).

195. The Board argued that the test of whether professional misconduct has occurred

still includes the test of 'infamous conduct in a professional respect' which was

adopted in Allinson v General Council of Medical Education and Registration

[1894] 1 QB 750:

If it is shown that a medical man, in the pursuit of his profession, has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency, then it is open to the General Medical Council to say that he has been guilty of infamous conduct in a professional respect.

196. The adjective 'infamous' is a term 'denoting conduct deserving of the strongest

reprobation, and indeed so heinous as to merit, when proved, the extreme

professional penalty of striking off.139 In Pillai v Messiter (No 2) (1989) 16

NSWLR 97 at 200-201, Kirby P commented on what was formerly considered

to be professional misconduct as follows:

138 Medical Board of Australia v Roberts [2014] WASAT 76 at [174]139 Felix v General Dental Council [1960] AC 704 at 720

69

Departures from elementary and generally accepted standards of which a medical practitioner could scarcely be heard to say that he or she was ignorant could amount to such professional misconduct. … But the statutory test is not met by mere professional incompetency or by deficiencies in the practice of the profession. Something more is required. It includes a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner.

197. The Tribunal accepts that the impugned conduct must be assessed in a realistic

context and not with an expectation of perfection.140

198. There are now detailed provisions in the relevant definitions in the National

Law and in the doctors’ Code and the surgeons’ Code identifying the nature of

such conduct, and the expected skills, values and conduct of those practising in

these professions.

199. The expression unprofessional conduct is defined to mean professional conduct

that is of a lesser standard than that which might reasonably be expected of the

health practitioner by the public or the practitioner's professional peers. The

definition also includes examples of 'unprofessional conduct'. Unlike the

definition of 'professional misconduct', the definition of 'unprofessional conduct'

is an exhaustive statement of that term. Unprofessional conduct is clearly

conduct of a less serious nature than professional misconduct. Whether or not a

practitioner is guilty of unprofessional conduct must be judged in accordance

with the standards of his or her profession.

200. The definition of unprofessional conduct also has both a performance

component and a conduct component. The performance component is

professional conduct that is of a lesser standard than that which might

reasonably be expected of the health practitioner by the public or by the

practitioner's professional peers. The conduct component is, for example, the

conviction of the practitioner for an offence under an Act other than the

National Law, the nature of which may affect a practitioner's suitability to

continue to practise the profession.

140 Vissenga v Medical Practitioners Board of Victoria [2004] VCAT 1044

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201. The definition of the term 'unsatisfactory professional performance' is also an

exhaustive statement of that term. It refers to a medical practitioner's

performance as a practitioner rather than their conduct. Unsatisfactory

professional performance has only a performance component (the knowledge,

skill or judgment possessed, or care exercised by a medical practitioner is below

the standard reasonably expected of a medical practitioner of an equivalent level

of training or experience).

202. That definition is suggestive of a generalised deficiency in the way in which a

practitioner handles his or her professional affairs.141 In Jemielita, Owen J was

considering the meaning of 'incompetency' under the now repealed Medical Act

1894 (WA). It is likely that a finding of unsatisfactory professional performance

will occur where the performance of the practitioner concerned has consistently

fallen below the expected standard as a medical practitioner, or where the

practitioner has never attained that standard.142

203. Section 196(1) of the National Law provides as follows:

196 Decision by responsible tribunal about registered health practitioner(1) After hearing a matter about a registered health practitioner, a

responsible tribunal may decide—(a) the practitioner has no case to answer and no further action is to be

taken in relation to the matter; or(b) one or more of the following—

(i) the practitioner has behaved in a way that constitutes unsatisfactory professional performance;

(ii) the practitioner has behaved in a way that constitutes unprofessional conduct;

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

(iv) the practitioner has an impairment;(v) the practitioner’s registration was improperly obtained because

the practitioner or someone else gave the National Board that registered the practitioner information or a document that was false or misleading in a material particular; or

141 Jemielita v Medical Board of Australia (Unreported, WASC, Library No 920584, 13 November 1992 at 19) (Jemielita)

142 Medical Board of Australia v Roberts [2014] WASAT 76 at [182]

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204. Section 196 of the National Law provides for a hierarchy of possible findings

by the Tribunal. These are that:

a) there is no case to answer (section 196(1)(a));

b) the conduct is unsatisfactory professional performance (section 196(1)(b)

(i));

c) the conduct is unprofessional conduct (section 196(1)(b)(ii)); or

d) the conduct is professional misconduct: (section 196(1(b)(iii)).

205. The issue for the Tribunal is whether the Board's allegations, to the extent that

they have been established, amount to unsatisfactory professional performance,

professional misconduct or unprofessional conduct.

206. The task of the Tribunal in deciding the standard of conduct of Dr Hocking in

the matters being considered differs according to the respective standards to be

applied:143

a) for a finding of ‘unprofessional conduct’ the conduct must be

‘substantially below the standard reasonably expected of a

registered health practitioner of an equivalent level of training or

experience’;

b) for a finding of ‘professional misconduct’ the standard is the

‘professional conduct that is ‘of a lesser standard than that which

might reasonably be expected of the health practitioner by the public

or the practitioner’s professional peers’; and

c) for a finding of ‘unsatisfactory professional performance’ the

standard is that the health practitioner‘s ‘knowledge, skill or

judgment, or care exercised by the practitioner … is below the

standard reasonably expected of a health practitioner of an

equivalent level of training or experience’.

207. The definitions of ‘unprofessional conduct’ and ‘unsatisfactory professional

performance’ require a comparison with someone with the same level of

training and experience as Dr Hocking as at the dates on which the two

143 Section 5 of the National Law

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treatments occurred, namely, 15 February 2012 (Patient B), and 8 April 2013

(Patient A). On the first of those dates, Dr Hocking had been in practice as an

orthopaedic surgeon for five years; on the second, for six years. Although there

is an absence of medically endorsed evidence as to the specific standards for

someone with Dr Hocking’s background, the Tribunal has relied on the

evidence of some of the experts on these issues.

208. The Tribunal has power to impose a penalty following a hearing of a matter

concerning a registered health practitioner where it has decided that the

practitioner has acted in a way that constitutes unsatisfactory conduct,

unprofessional conduct and professional misconduct. Penalties include ordering

deregistration, suspension, payment of a fine, or the imposition of conditions.

Those penalties are provided under the National Law s 196(2) which provides

as follows:

If a responsible tribunal makes a decision referred to in subsection (1)(b), the tribunal may decide to do one or more of the following  

(a)caution or reprimand the practitioner;

(b) impose a condition on the practitioner's registration, including, for example  

(i) a condition requiring the practitioner to complete specified further education or training, or to undergo counselling, within a specified period; or

(ii)a condition requiring the practitioner to undertake a specified period of supervised practice; or

(iii) a condition requiring the practitioner to do, or refrain from doing, something in connection with the practitioner's practice; or

(iv) a condition requiring the practitioner to manage the practitioner's practice in a specified way; or

(v) a condition requiring the practitioner to report to a specified person at specified times about the practitioner's practice; or

(vi) a condition requiring the practitioner not to employ, engage or recommend a specified person, or class of persons;

(c) require the practitioner to pay a fine of not more than $30 000 to the National Board that registers the practitioner;

73

(d)suspend the practitioner's registration for a specified period;

(e) cancel the practitioner's registration.

(3)If the responsible tribunal decides to impose a condition on the practitioner's registration, the tribunal must also decide a review period for the condition.

(4)If the tribunal decides to cancel a person's registration under this Law or the person does not hold registration under this Law, the tribunal may also decide to  

(a)disqualify the person from applying for registration as a registered health practitioner for a specified period; or

(b)prohibit the person from using a specified title or providing a specified health service.

The Closing Submissions: OR 13/48

Board

209. Board submitted in its Closing Submissions that the findings it sought were that

Dr Hocking’s conduct amounted to:

(a) unsatisfactory professional performance by removing substantial bone

from Patient B’s acetabular rim;

(b) professional misconduct within (a) of that definition in section 5 of the

National Law by failing to disclose to the patient and her family the

restriction on his registration which had the potential to affect the

treatment he was to provide to her, alternatively, unprofessional conduct;

(c) professional misconduct within (a) of that definition in the section 5 of the

National Law by creating a second operation report in respect of the hip

arthroscopy performed on 15 February 2012;

(d) unsatisfactory professional performance as to the judgement and care

exercised by Dr Hocking in the practice of the health profession in his

failure to refer Patient A at the time he formed the view that the patient

needed a PVFO and failing to consult more with colleagues in the use of a

novel treatment; and

(e) further, or in the alternative, professional misconduct within (b) of that

definition in section 5 of the National Law as the conduct the subject of

allegations (a)-(c), each being instances of unprofessional conduct when

considered together is conduct that is substantially below the standard

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reasonably expected of a registered health practitioner of an equivalent

level of training or experience.144

Dr Hocking

210. Dr Hocking’s Closing Submissions related to Patient B and Patient A. His

submissions in relation to Patient B, in summary, were:

(a) Dr Hocking did not remove significant bone from Patient B’s acetabular

rim. Dr Hocking resected a bump outside of the articular part of

Patient B’s hip joint, proximate to but not from her left acetabular margin;

(b) the charge that Dr Hocking failed to disclose to the patient and her family

the restriction on his registration should be dismissed in light of the

inconsistencies in the evidence of Patient B’s mother, the events of

27 May 2011 and 19 August 2011 which contextualise the allegations, the

absence of any legal obligation to disclose the restrictions, and the

reasonableness of Dr Hocking’s expectations that those restrictions would

be lifted prior to the time the PAO would be performed; and

(c) the charge in relation to the preparation of the second operation report

should be dismissed since Dr Hocking’s production of the ‘aide memoire’

must be seen in the context of the evolving history of this matter, which

until this hearing did not assume the significance it has received in the

hearing and it would be unfair to penalise him for its production in this

context, and in particular that a finding as to his credit cannot be met by

the material advanced by the Board from cross-examination.

211. Dr Hocking also submitted he has no case to answer in OR 13/48.

Alternatively, he submitted if his conduct has fallen below the standard

expected of him, his extended period of Board imposed conditions is sufficient

to assuage concerns about his capacity to practise in the future.

212. In particular the risk to the public of Dr Hocking’s continuing to be involved in

conduct below the standards expected is negligible given his successful

mentoring; his development of insight into some of the shortcomings of his

conduct, his extended period of practice subject to conditions, the successful

144 Board’s Closing Submissions [121]

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completion of his retraining as required, and the undertakings he is prepared to

provide.

213. The Tribunal has taken into account the extensive evidence and submissions in

this matter.

FINDINGS OR 13/48

Allegation 1. Debridement of Patient B’s acetabular rim

214. The experts in the joint report agreed that it was the arthroscopy which resulted

in instability osteoarthritis and hastened the need for hip joint replacement and

that this unfortunate event has been experienced by other surgeons and

documented in the orthopaedic literature.

215. The Tribunal has found that the rapid deterioration of bone in Patient B’s hip

was due to the weakening of all three of the static stabilisers of the hip joint. In

other words it has found that there was removal of bone at or around the

acetabular rim, together with a failure to repair the labrum and to suture the

capsulotomy after the arthroscopic procedure. The Tribunal has also found that

the rapid deterioration was not due to weight-bearing on the part of Patient B. It

followed, so the Tribunal found that Dr Hocking’s removal of bone during the

arthroscopy contributed to the subsequent hip dislocation experienced by

Patient B.

216. The Tribunal has also accepted, based on the evidence of Professor Smith that

there was a significant amount of bone removed, resulting in the need for

replacement of bone by a wedge grafted from the patient’s femoral head.

Removal of bone is also supported by the evidence of Professor Cundy and

Dr Solomon. The literature warns in the case of patients with dysplastic hips

that even minimal weakening of the three static stabilisers of the hip may lead to

dislocation of the hip and that particular care should be taken with patients with

dysplasia in the face of disruption to the supporting structures. Dr Hocking, as

an orthopaedic surgeon of his training and experience, should have been aware

of these dangers. The experts have also agreed that Dr Hocking’s post-operative

management was not optimal. Dr Hocking was aware that there were problems

as he recommended pain-relief through local anaesthetic and steroids five weeks

after the operation. In other words, Dr Hocking should have appreciated earlier

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that there were complications in relation to Patient B’s hip and taken steps to

assess the situation.

217. The Board has submitted that in this instance, the Tribunal should find

Dr Hocking’s conduct was unsatisfactory professional performance. The

Tribunal is aware that unfortunate complications occur in surgery, and are not

always due to the technical incompetence of the surgeon. However, in light of

the findings of the Tribunal as to Dr Hocking’s removal of bone during the

arthroscopy, the warnings in the literature that weakening of the three static

stabilisers can lead to rapid deterioration of the hip, the findings of the experts

that Dr Hocking’s post-operative management was not optimal, the Tribunal

finds that Dr Hocking’s conduct fell below the standard of skill, and care

reasonably exercised by someone of an equivalent level of training or

experience and did amount to unsatisfactory professional performance.145

Allegation 2: Failing to disclose restrictions on registration

218. The report of the experts noted that the embargo in place in February 2012 was

potentially to be lifted on or about 28 June 2012, based on the initial Statement

A. The report concluded that this involved ‘a time interval which would not be

inconsistent with an acceptable interval between the two procedures, had the

unfortunate catastrophic complication not occurred’. As a consequence, the

experts made no comment/finding on this issue.

219. The Tribunal has found that Dr Hocking’s beliefs about the potential lifting of

the restrictions referred to in the report of the experts were not reasonable.

220. The Tribunal has also found that Dr Hocking should have referred Patient B to

another surgeon when a speedier or possibly alternative approach to her

treatment could have been undertaken. The Tribunal notes that even Dr Young

in his 12 September 2012 report said that it was unfortunate that an earlier PAO

was not undertaken which might have prevented the complication which

occurred. That view was supported by Professor Cundy.

145 National Law s 196(1)(b)(i).

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221. The Board contended that the Tribunal should find Dr Hocking’s conduct

amounted to professional misconduct. Alternatively there should be a finding of

unprofessional conduct.

222. Professor Cundy’s opinion was that the failure did not ‘fall substantially below

the standard expected’. That leaves open the possibility that the conduct could

be unsatisfactory professional performance. The Board submitted that the

failure to refer was either professional misconduct or unprofessional conduct.

Counsel for Dr Hocking submitted that:

It is a counsel of perfection, informed by hindsight, to impose on Dr Hocking an obligation that he should have discussed the undertaking in the circumstances as they were as at 19 August 2011.

223. The views of the medical experts (Dr Young, Professor Cundy and Professor

Smith) were that Dr Hocking’s failure to refer, although not substantially below

the standard to be expected of a competent practitioner, did not meet the

standard expected by professional peers.

224. The Tribunal accepts, as Professor Cundy notes, that the failure was not

substantially below the expected standard, and accordingly the conduct did not

meet either of the two more stringent standards.

225. The Tribunal is not prepared to find that the failure amounted to conduct which

was substantially below expected conduct, particularly in view of Professor

Cundy’s opinion. Nor is it prepared to find that the conduct was of such a

nature that the practitioner could have been prosecuted for, or convicted of an

offence in relation to the contravention. There was no evidence to support

findings of that degree of seriousness. In these circumstances, the Tribunal finds

that this aspect of Dr Hocking’s pre-operative procedures in the Patient B matter

amounted to unsatisfactory professional performance.146

Allegation 3: Creation of second operation report

226. The Board has submitted that Dr Hocking’s actions in producing a second

operation report was professional misconduct. Counsel for Dr Hocking

submitted that unless the Tribunal makes a finding that the document was

deliberately created to provide a false explanation of what actually occurred in 146 National Law s 196(1)(b)(i).

78

the operation, the charge should be dismissed. The Tribunal has found that there

was an admitted error in the first report in relation to the reference to a pincer

lesion. That means Dr Hocking’s record keeping falls below the standards in

both the doctors’ Code and the surgeons’ Code. Errors in records to be used by

others are regarded as significant since those records are used by those in

treatment of the patient. Second, it has found that Dr Hocking altered the

original record in a manner which was intended to benefit himself in any

potential disciplinary or other proceedings.

227. The Tribunal takes account of the fact that the second report was not intended to

be placed on the patient’s file. It was for his private use only. Nor was the

document intended to get into the public arena. Nonetheless, it was intended to

be used by him, if necessary, to present his actions in a more favourable light in

possible disciplinary hearings. Such a purpose is at least self-serving. The

altered record was also in breach of the surgeons’ Code that the surgeon ‘be

open and honest, particularly when the patient has suffered a complication or

adverse event’.147 So, the Tribunal is satisfied that the action was in breach of

the relevant principles referred to earlier in both the surgeons’ and the doctors’

Codes.

228. Professor Cundy’s opinion was that such actions were substantially below the

standard to be reasonably expected of a registered health practitioner of an

equivalent level of training or experience. That opinion takes account of the

fact that Dr Hocking has exhibited more than one instance of unprofessional

conduct, that is, conduct of a lesser standard than that which might reasonably

be expected of the health practitioner by the public or the practitioner’s

professional peers. In these circumstances, the Tribunal finds that the

preparation of the second report amounted to unprofessional conduct.148

CONCLUSION OR 13/48

229. In summary, the Tribunal has found that Dr Hocking’s conduct in relation to

allegation 1 was unsatisfactory professional performance, that allegation 2 was

147 Clause 3.1.9 of the surgeons’ Code148 National Law s 196(1)(b)(ii).

79

also unsatisfactory professional performance, and that his conduct in relation to

allegation 3 was unprofessional conduct. These findings reflect his failure to

refer, his attempted cover-up in his second record, and his poor clinical

performance. However, in light of the generally favourable reports on his

performance in the last twelve months, the improvement in his record of

notifications, and the retraining he has undertaken, coupled with the opinion of

Dr Gillespie that Dr Hocking’s performance in routine adult hip and pelvic

surgery is perfectly competent, the Tribunal does not find that, even in

combination, his conduct merits deregistration.

Matter: OR 14/31 – Patient A and Dr Hocking’s Behaviour

Background

230. Dr Hocking had been treating Patient A, a 9 year old boy, for Perthes’ disease of

the hip since 2011. Perthes’ disease is a condition more commonly affecting

juveniles and has no known cause. The symptoms are pain due to inflammation

of the inside of the hip joint. Treatment is principally designed to reduce

inflammation and pain, and thus to increase the patient’s mobility.

231. Dr Hocking first diagnosed Patient A with Perthes’ disease on 10 May 2011.

On 7 July 2011 Dr Hocking confirmed, following receipt of x-rays, that Patient

A’s left hip was in the early phase of Perthes’ disease. Patient A began to

experience increasing pain and he was treated with steroid injections performed

under general anaesthetic on 26 September 2011, and 1 March 2012. Petrie

casts for night-time wear were also introduced.

232. On 25 July 2012, following a consultation with Patient A, Dr Hocking

foreshadowed to Patient A’s general practitioner, possible surgical intervention

in the form of a proximal femoral varus osteotomy (PFVO)149 which

Dr Hocking said he ‘would plan to coordinate in the next three months’.150

The procedure is open hip surgery which, in July 2012, Dr Hocking was

prohibited from performing under conditions on his registration. On

19 November 2012, Dr Hocking again treated Patient A with a steroid injection

under general anaesthetic.

149 A proximal femoral varus osteotomy is an operation to remove part of the thigh bone to restore normal anatomy

150 Dr Hocking Statement of 13 March 2015

80

233. At a consultation on 30 October 2012, Dr Hocking informed Patient A and his

mother that he was recommending delaying the PFVO procedure until Patient

A’s hip had greater flexibility which he proposed to facilitate by injecting

Platelet Rich Plasma (PRP) inter-articularly into the hip. PRP is a treatment

involving the patient’s own blood which is harvested and reinjected in

concentrated form. The treatment is categorised as autologous because the

blood cells are obtained from the person, the subject of the treatment.

234. On 31 October 2012, he also advised Patient A’s general practitioner of his

changed recommendation. In his letter to the general practitioner, he said:

I have shown [Patient A’s] x-rays down in Melbourne to a Colleague, Dr Jitt Balacuma (sic) and he was concerned that with the migration of the femoral head that an osteotomy may not be the most appropriate thing right at the moment. We think that a better thing to do would be to get [Patient A’s] head more concentrically reduced by doing an intra-articular injection of an anti-inflammatory and possibly also some platelet derived growth factors.

235. On 8 March 2013, as the latest x-rays had shown further deterioration of the

joint, Dr Hocking wrote to Patient A’s general practitioner and stated: ‘I think

that [Patient A] could also be a candidate for a PRP injection into the hip’.

Dr Hocking confirmed that recommendation by letter on 19 March 2013.

236. At around the same time,151 in a consultation with Patient A and his mother he

proposed that instead of a further steroid injection he would inject PRP. He

acknowledged that he had not personally injected PRP into the hip of any other

patient with Perthes’ disease, but that a colleague in Melbourne, Dr Balakumar,

had been trialling PRP, including by injecting it into the hip, with good results.

Following this advice, the patient’s mother consented to the PRP procedure for

Patient A. The imaging of deterioration to the hip was confirmed by MRI and

on 8 April 2013, the PRP procedure was undertaken on Patient A under general

anaesthetic.

237. After the operation, a file note of Dr Hocking dated 23 April 2013, noted a

discussion with the mother of Patient A in September 2012 that ‘currently she

would like to continue waiting for surgery’, meaning the PFVO surgery.

151 Affidavit of Patient A’s mother, dated 24 May 2013 at [19]

81

Dr Hocking also said ‘Hopefully we will have some degree of resolution in the

next few weeks and we will be able to give her a more firm plan as to what to

do’.

238. On 18 April 2013, the Board received an anonymous notification concerning

this treatment under cover of a letter from Dr Robert Griffin, the administrator

of the Clinical Privileges Committee (Committee) at The Canberra Hospital.

The notification was made in accordance with section 146 of the National Law.

The notification asserted that the treatment administered to the patient was

unwarranted therapeutic experimentation and it placed the patient at risk of a

general anaesthetic and at risk of introducing infection into the joint without any

evidence of the treatment’s efficacy and safety.

239. On 22 April 2013, the Board wrote to Dr Hocking to advise that it proposed to

take immediate action under the section 156(1)(a) of the National Law and to

seek his submissions. On 24 April 2013 Dr Hocking attended a hearing on the

matter. Following the hearing, on 26 April 2013 the Board, decided to take

immediate action by suspending Dr Hocking’s registration, pending the

outcome of an investigation into the allegations.

240. On 3 May 2013, Dr Hocking applied to the tribunal for the suspension to be set

aside.152 On 6 May 2013, the Tribunal made a stay order pending the hearing of

the matter. On19 July 2013 the ACT Supreme Court continued the conditional

stay. The tribunal held a merits review hearing of the suspension decision on

16-17 September 2013 and 25 September 2013. On 25 September 2013, the

tribunal reserved its decision. On 13 March 2015, that Tribunal made the

following orders: 153

1. A decision to impose a condition on the applicant’s registration prohibiting him from treating paediatric patients who have Perthes’ Disease with platelet rich plasma unless he does so under the supervision of a specialist orthopaedic surgeon approved by the respondent Board is substituted for a decision to suspend his registration.

2. This decision is an immediate action decision.

152 Matter OR 11 of 2013153 Hocking v Medical Board of Australia (Occupational Discipline) [2015]

ACAT 22

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241. On 4 July 2014, the Board filed an application with the tribunal for disciplinary

action in relation to Dr Hocking’s treatment of Patient A.

242. The allegations in the application for disciplinary action in the Patient A matter

are as follows:

Allegation 1

(a) By treating Patient A, a 9 year old with Perthes’ disease by injecting

Platelet Rich Plasma (PRP) under general anaesthetic into the patient’s left

hip joint, Dr Hocking engaged in unsatisfactory professional performance.

At that time it was contended that there was no direct clinical support, or

published research in support of the use of PRP and that its use was

unproven technology in treating Perthes’ disease.

(b) Having formed the view by 25 July 2012, that Patient A should undergo

proximal femoral varus osteotomy within the next three months and by

failing to refer Patient A to another paediatric orthopaedic surgeon who

was not restricted in carrying out such surgery if necessary on Patient A

Dr Hocking engaged in unsatisfactory professional performance.

Allegation 2

By misrepresenting to Patient A’s parents, prior to the PRP treatment, that PRP

treatment for juvenile Perthes’ disease sufferers was treatment which had been

provided by an orthopaedic colleague, Dr Balakumar, in Melbourne with some

success, Dr Hocking engaged in professional misconduct.

Allegation 3

By failing to obtain informed consent from Patient A’s parents prior to

administering the PRP treatment as required by the surgeons’ Code and the

doctors’ Code, Dr Hocking had engaged in unsatisfactory professional

performance.

Contentions

243. The Board contended that Dr Hocking’s failure to refer Patient A at the time he

formed the view that the patient needed a PVFO and his failure to consult more

with colleagues in the use of the novel treatment, were errors of judgment and

83

care in the practice of the health profession and amounted to unsatisfactory

professional performance.

244. Dr Hocking contended that he provided appropriate care for Patient A and kept

his mother informed of Patient A’s treatment options. He only changed Patient

A’s treatment recommendation after consultation with Dr Balakumar, and the

appropriateness of that change is supported by Perthes’ expert, Professor

Little.154

245. Dr Hocking also contended in relation to Patient A:

(a) the failure to refer must be seen in the context of the history of the matter

including that negotiations were proceeding on a number of fronts, it

would have been inappropriate to operate as long as stiffness remained in

Patient A’s hip joint, in circumstances in which if necessary an alternative

surgeon could have been found reasonably quickly, when the

circumstances had been discussed with Patient A’s mother who elected to

continue to continue treatment with Dr Hocking, and when Dr Hocking

believed he had discussed the matter with Dr Balakumar who agreed that

his proposed treatment was appropriate;

(b) the evidence established that Dr Hocking obtained appropriate informed

parental consent to the use of PRP; and

(c) it would be imposing too high a standard to find that failing to refer

Patient A to another surgeon amounted to unsatisfactory professional

performance in circumstances where the difficulties facing Dr Hocking

were discussed with Patient A’s mother who elected to continue treatment

with him.155

246. Dr Hocking also submitted he has no case to answer in OR 14/31.

Alternatively, he submitted if his conduct has fallen below the standard

expected of him, his extended period of Board imposed conditions is sufficient

to assuage concerns about his capacity to practise in the future.

154 Dr Hocking’s closing submissions [6.7]155 Dr Hocking’s Closing Submissions [6.9]

84

Consideration including evidence

247. The joint report of Dr Young and Professor Little, orthopaedic surgeon, Sydney,

dated 4 March 2015, in relation to this matter, found as follows:

a) the use of platelet rich plasma (PRP) in Perthes’ disease by Dr Hocking

appears to be novel;

b) the early phases of Perthes’ disease are characterized by an inflamed hip

with an effusion and decreased range of motion. Both inflammation and

decreased range of motion are widely held to be detrimental to the

patient’s hip;

c) PRP has been shown to have anti-inflammatory effects in the laboratory

setting;

d) only one very limited animal study has been performed using PRP in

Perthes’ disease. This short term study did not show benefit, with

structure being the outcome (not inflammation);

e) PRP is commonly used in many other inflammatory conditions;

f) PRP has been used in tendinopathy and ligament injuries for some time

with an evidence base of benefit;

g) intra articular PRP is being used more and more commonly for

inflammatory joint conditions. Although the evidence base for this is still

being built PRP has replaced corticosteroids in many doctors’ practices. It

is widely accepted that repeated corticosteroid injections are undesirable

and may cause harm;

h) any intervention can have side effects. PRP injection can result in an

initial pro-inflammatory reaction, but these reactions are nearly always

mild and always self-limiting; and

i) although the injection of PRP intra articularly is novel, as an

autologous product it is extremely unlikely to have caused any harm.

There is no evidence that patient A had any adverse reaction to PRP.

Allegation 1: (a) Use of PRP

248. The Tribunal’s task is to decide whether the use of PRP in April 2013 fell

‘below the standard reasonably expected of a health practitioner of an

equivalent level of training or experience’.156

156 Section 5 of the National Law

85

249. The treatment was, at the time, a novel therapeutic treatment for Perthes’

disease which did not have any published research in support of its use.

250. Dr Hocking conceded in his 13 March 2015 statement that ‘novel treatment

recommendations are best provided, and implemented, after wider consultation

with my professional colleagues’. That concession is to his credit. Nonetheless,

that concession was made with hindsight and after mentoring by, among others,

Dr Hardman. The Tribunal also notes that Dr Hocking believed he had

consulted with Dr Young and Dr Balakumar.

251. The Tribunal notes evidence produced to the hearing in relation to the first four

notifications made in relation to Dr Hocking, one of which involved use of a

novel surgical treatment in the case of a Perthes’ patient, an adult, in 2008.

Following that event, Dr Hocking agreed that the treatment plan was

controversial, that there were ‘no long term studies as the technique I was

proposing is new’ and that literature ‘is developing to support the innovative

technique’ and that at the time he ‘had limited experience’ in its use. In other

words, he had previously experienced complications for treatment he had

undertaken which was novel and claimed he had learned lessons from that

experience. The Tribunal is concerned that his judgement has not benefited

from those lessons.

252. Professor Little, in his report of 12 May 2013, rejected comments of Dr Young

in his letter dated 2 May 2013 and further report of 12 May 2013 concerning the

growing usage of PRP. He denied there was evidence to support Dr Young’s

statements and said there was no published peer review literature on the topic.

He concluded that the treatment was novel, but not experimental.

253. In his review of the 30 or so articles listed by Dr Hocking in support of his use

of the treatment, Professsor Little’s conclusion was that ‘more high level

clinical trial evidence was required before PRP was considered routine practice

or standard of care in any condition’, and that ‘None of these papers address

Perthes’ disease’. The only preclinical trial showed no effect of PRP in the

piglet model (the animal study trials). The Tribunal accepts Professor Little’s

evidence on this issue.

86

254. The joint report of Professor Little and Dr Young concluded that PRP has been

shown to have anti-inflammatory effects in the laboratory setting, but that only

one very limited animal study has been performed using PRP in Perthes’ disease

and this short term study did not show reduction in inflammation. The report

conceded that PRP is commonly used in many other inflammatory conditions.

Nonetheless, the joint report concluded that ‘although the injection of PRP

intra-articularly is novel, as an autologous product it is extremely unlikely to

have caused any harm, and that there was no evidence that patient A had any

adverse reaction to PRP’.

255. The Tribunal notes that the surgeons’ Code acknowledges the advantages of

surgeons acquiring the skills of … new technology either through ‘training

courses, mentorships etc’ where there is ‘proven benefit’.157 Dr Hocking

maintained that he had been trained in the use of this procedure during his two

twelve month fellowships in Toronto, and subsequent training in

North America.

256. The tenor of the surgeons’ Code is that following such training the surgeon is

expected to use those skills, provided there is ‘proven benefit’ and there has

been informed consent by patients or their legal consent-givers.158 To that

extent, Dr Hocking’s use of PRP, following consent by the mother of Patient A,

falls within the practice enjoined by clause 11.2.1.

257. At the same time there is a reference in this segment of the Code to seeking ‘to

participate in a properly constructed clinical trial’ but only ‘where

appropriate’.159 Doing the best it can with the available evidence it appears to

the Tribunal that Dr Hocking’s opinion was that there was no need for clinical

trials in Australia, because of the existing practices within the country to use

PRP and the references in the 30 or so articles attached to its efficacy or

otherwise. However, Professor Little’s comments about the predominant

outcomes in those articles being the need for more clinical trials, and the paucity

of evidence in Australian practice of whether PRP was effective in reducing

157 Clause 11.2 of the surgeons’ Code 158 Clause 11.2.1 of the surgeons’ Code159 Clause 11.2.3 of the surgeons’ Code

87

inflammation, means the Tribunal considers that Dr Hocking’s opinion was not

warranted.

258. The surgeons’ Code only provides that there is a breach when the surgeon has

introduced ‘a new procedure or technology to a hospital without seeking

approval from the local new technology committee or relevant jurisdiction’.160

Dr Balakumar, in evidence to the Tribunal, said that although in public hospitals

there are clinical committees which must be approached before any new

technology is introduced by a surgeon operating within the hospital system, that

principle does not apply to use of new technology by those in private practice.

In that situation, the only constraint is the need to get informed consent from the

patient. As Dr Hocking was essentially in private practice, his failure to seek the

approval of the relevant committee in either the Calvary Hospital or The

Canberra Hospital, where he was a Visiting Medical Officer, did not apply to

him.

Allegation 1: (a) Conclusion

259. Taking into account all this evidence, the Tribunal finds that as at 8 April 2013

the treatment of PRP for a paediatric Perthes’ patient was not known to have

been used previously in Australia, and was a novel treatment and cannot be said

to be of proven benefit within the terms of clause 11.2 of the surgeons’ Code.

Accordingly the Tribunal finds that use of PRP for paediatric patients with

Perthes’ disease was novel and Dr Hocking had not sufficiently taken this into

account in his administration of the treatment.

Allegation 1: (b) Failure to refer Patient A to another surgeon

260. The issue is whether, in July 2012, Dr Hocking should have referred the patient

to a surgeon who could, if appropriate, have performed the PFVO procedure.

261. Dr Hocking contended that at all stages he had provided appropriate care for

Patient A and kept his mother informed of Patient A’s treatment options. He

only changed Patient A’s treatment recommendation after consultation with

Dr Balakumar, and the appropriateness of that change is supported by Perthes’

160 Clause 11.2 of the surgeons’ Code

88

expert, Professor Little. Dr Hocking denied that he should have referred Patient

A.161

262. Dr Young did not advert to the question in his reports. Nor was there a

reference to this issue in the joint report.

Allegation 1: (b) Consideration including evidence

263. In July 2012, Dr Hocking was unable to perform the PFVO surgery he had

proposed as a possible treatment. Nor was he able to do so three months’ later in

September 2012. The conditions to which his registration was subject

prevented him undertaking unsupervised open hip surgery, and the PFVO

procedure was open hip surgery. Although Dr Hocking submitted that he

expected to be able to operate with no restrictions by September 2012, if not

earlier, the Tribunal has found earlier in these reasons that that expectation was

unreasonable.

264. Dr Hocking had been subject to an undertaking or to conditions on his

registration since 5 May 2011 and despite all his requests to the Board to lift the

conditions and to do so expeditiously, that had not occurred. So by July 2012 he

would have known from experience about the slow progress of Board

investigations. Accordingly he should have anticipated that he might well not

have been able to perform the PFVO operation himself by September 2012. In

addition, the conditions had been in place in July 2012 only for some three

weeks and were not to be reviewed for at least six months, that is, December

2012. So he must have known in July 2012 that he would be subject to the

conditions in September 2012.

265. At the hearing, when questioned as to what steps he had taken to co-ordinate the

proposed PFVO within the three months following his recommendation for its

use in July 2012, Dr Hocking said he faced two difficulties: he needed ‘an

eminently qualified experienced orthopaedic surgeon who has managed

paediatric patients’ as a supervisor;162 and he was still negotiating with the

Board about using Dr McNicol, a Canberra-based orthopaedic surgeon with a

specialty interest in paediatric surgery, as a re-trainer, a process which he said

161 Transcript of Proceedings 23 March 2015 at page 383162 Transcript of Proceedings 23 March 2015 at page 286

89

‘took till about December’.163 Contrary to that last evidence, the Tribunal notes

that the Board notified Dr Hocking on 20 August 2012 that it had decided not to

accept Dr McNicol, as a re-trainer, a decision confirmed by letter from the

Board on 11 September 2012.

266. The Tribunal accepts that, in a conversation with Patient A’s mother in

September 2012, she had expressed a preference for the operation to be

undertaken in Canberra. The Tribunal also accepts that there was a dearth of

orthopaedic specialists with experience in paediatric work in Canberra.164 So

Dr Hocking was faced with a difficulty of finding an appropriate supervisor for

the PFVO operation in Canberra. Dr Hocking’s evidence was that he had tried

to arrange for such a person in both Sydney and Melbourne, with no success.

Even if Dr Hocking hoped, in July 2012, that he would be able to perform this

procedure in the September 2012 without a supervisor, the Tribunal finds that

he should have told Patient A’s mother in August 2012 that he would be unable

to perform the procedure, as by then his inability to find a supervisor should

have been readily apparent to him.

267. The Tribunal notes the requirement in the surgeons’ Code that a surgeon will

‘...refer a patient when the best procedure for the patient is not within the scope

of practice of the surgeon.165 Similarly, the doctors’ Code states that good

medical practice involves ‘referring a patient to another practitioner when this is

in the patient’s best interests.166 The doctors’ Code also notes that good patient

care involves ‘recognising and working within the limits of your competence

and scope of practice’.167 Dr Hocking’s scope of practice at that time did not

include the performance of open surgery such as a PFVO.

268. Although his recommendation was only that he would ‘coordinate’ the PFVO

by September 2012, which could suggest that he was not undertaking to perform

the treatment in person, this inference is undermined by his failing to make any

attempt to warn Patient A’s mother that he might not be the surgeon who would

undertake the procedure. Dr Hocking had also conceded at the Panel hearings in

163 Transcript of Proceedings 23 March 2015 at page 286164 Transcript of Proceedings 23 March 2015 at page 286165 Clause 3.1.10 of the surgeons’ Code 166 Clause 2.1.4 of the doctors’ Code 167 Clause 2.2.1 of the doctors’ Code

90

October 2013 that he should have advised of his restrictions on registration in

relation to Patient B. By analogy, he should have done so too in the case of

Patient A.

269. Professor Little, in his report dated 12 May 2013, said Dr Hocking’s continuing

management of Patient A, at a time when he had recommended an operation

which he was unable to perform, ‘may not be ideal as it could alter the

behaviour of the [alternative] surgeon. He was more explicit in his

supplementary report of 12 March 2015 where he observed ‘Dr Hocking should

have referred [Patient A] at that time (25 July 2012) to another paediatric

orthopaedic surgeon who could undertake, if they saw fit, this procedure’. To

illustrate this point Dr Little pointed out that ‘By the time … the PRP injection

was administered … conducting an osteotomy of this kind [PFVO] was unlikely

to be a viable option, because the femoral head shape had by then deteriorated’.

270. In other words, the delay in conducting the PFVO surgery, as foreshadowed in

September 2012, had resulted in that form of surgery no longer being a viable

option. The implication was that had the matter been referred to another

surgeon, that person might have chosen a different treatment plan or been able

to conduct the PFVO surgery within a shorter time frame and prior to the

deterioration of the femoral head.

271. The Tribunal notes Dr Hocking’s closing submission that it was appropriate

practice to defer the surgery when Patient A’s stiffness in his hip first needed to

be alleviated, that he believed the advice given by Dr Balakumar was to this

effect, that Patient A’s mother had requested that the surgery be undertaken in

Canberra, and that Dr Hocking was continuing to have difficulty in finding an

appropriate supervisor for this location.

272. The Tribunal rejects the submission that ‘if it had become necessary for the

operation to be carried out [Patient] A could have seen another surgeon

reasonably quickly’.168 Given the preference of Patient A’s mother to have the

operation in Canberra, the known delays in elective surgery for public patients

in Canberra hospitals, and Dr Hocking’s admitted difficulty in finding a surgeon

168 Dr Hocking’s Closing Submissions [6.8]

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to supervise him in that city, that submission is inconsistent with the exigencies

Dr Hocking was then facing.

Allegation 1: (b) Conclusion

273. The Tribunal finds that in recommending in July 2012 the use of the PFVO

procedure ‘to be coordinated in the next three months’, that is, by September

2012, only some three weeks after the Board imposed conditions which were

not to be reviewed before December 2012, Dr Hocking must have known that it

was most unlikely that he would be able to perform the procedure at that time.

274. There was no reason to expect, at that time, that the surgery would be delayed,

and having informed the mother of Patient A that a PFVO was treatment was

proposed within the next three months, he was impliedly indicating to her that

he would be the person who undertook the surgery. That implication is the

stronger given the fact that Dr Hocking was treating another sibling of Patient A

for a similar condition. In this situation he was in breach of the trust which

Patient A’s mother had developed in him, through the treatment of two of her

children for the same condition, not to disclose that in the event that the

treatment went ahead as planned, Dr Hocking might not be the one to undertake

it. By not warning her of this possibility, Dr Hocking was denying her the

opportunity to develop a relationship of trust with another practitioner prior to

any PFVO surgery. For these reasons, Dr Hocking was in breach of provisions

in the surgeons’ Code and the doctors’ Codes requiring referral when the

procedure might not be within the scope of his practice at that time.

Allegation 2: Misrepresentation to parents of Patient A

275. The issue is whether Dr Hocking misrepresented to the parents of Patient A and

to the general practitioner, that PRP for Perthes’ had been used with satisfactory

outcomes by Dr Balakumar, who had agreed with Dr Hocking’s approach. If he

did so, did this misrepresent the risks and benefits of use of PRP for a paediatric

patient with Perthes’ disease?

276. A related issue is whether the misinformation had the effect that the consent

from the patient’s parents to the treatment (the third issue) was not informed.

That proposition depends on a finding as to whether the consent was influenced

92

by Dr Hocking misrepresenting to them that Dr Balakumar had used this

procedure for paediatric patients with some benefit (the fourth issue).

277. The Tribunal considers it unlikely that there was any discussion about Patient A

in September 2012 as alleged in Dr Hocking’s closing submission since the

evidence suggests the conversation with Dr Balakumar was of a general nature,

involving as it did an invitation from Dr Hocking for Dr Balakumar to come to

Canberra to provide supervision of Dr Hocking when undertaking paediatric

surgery as required by the restrictions on his practice.

278. Dr Balakumar’s evidence in his affidavit of 23 July 2013, was that he declined

the invitation, from which it can be inferred that although Patient A‘s name may

have been mentioned, no details were discussed since Dr Balakumar had,

according to his evidence which the Tribunal accepts, been reluctant to be

involved with the supervision of Dr Hocking from the beginning of their

relationship in 2012. That was consistent with his refusal to come to Canberra

to supervise Dr Hocking’s paediatric surgery.169

279. Dr Hocking was of the firm view that he discussed the case of Patient A and the

use of PRP for Perthes’ disease paediatric patients with Dr Balakumar on

18 October 2012 when he was in Melbourne. However, he contended that the

likelihood is that he misunderstood advice that Dr Balakumar had used PRP for

a patient with Perthes’ disease.170

280. Dr Balakumar, in his affidavit171 for the ACT Supreme Court proceedings,172

denied firmly that Dr Hocking raised any specific case with him when they were

together. He did concede in his letter of late May/early June 2013 that the use

of PRP in Perthes’ disease may have been a theme in their discussions, and that

he had used PRP to treat some adult patients, but denied that he had ever used

PRP in the treatment of children with Perthes’ disease. As he said:

I would never recommend any form of treatment without first physically examining a patient myself. I would not have recommended PRP as a treatment for Perthes’ disease. This is because it is not indicated for this

169 Affidavit of Dr Balakumar, 23 July 2013 [11] 170 Dr Hocking’s Closing Submissions [6.12] [6.13]171 Affidavit of Dr Balakumar, 23 July 2013 [11]172 Hocking v Medical Board of Australia [2014] ACTSC 48

93

condition and is unlikely to have any positive effect. To date I have not used PRP when treating Perthes’ disease, nor am I aware of anybody in Australia (other than Dr Hocking) using PRP to treat Perthes’ disease. I would not recommend another practitioner use a treatment which I had not used myself.

281. In the Tribunal Dr Balakumar did not resile from his view that he had not used

PRP in treatment of children with Perthes’ disease, but conceded in cross-

examination that there was always a possibility that he had forgotten a

conversation with Dr Hocking about Patient A’s case during Dr Hocking’s visit

to Epworth Hospital to observe Dr Balakumar operating. That concession

accords with the specificity of the evidence of Dr Hocking. According to

Dr Hocking, when Dr Balakumar was told that Patient A’s brother had

developed the condition in 2011 (sic, 2008), Dr Balakumar had said Dr Hocking

should consider multiple epiphyseal dysplasia, a familial condition.173

282. Despite that concession, the Tribunal accepts the statements in Dr Balakumar’s

affidavit and in the May/June 2013 letter that his standard practice is never to

offer advice in relation to a specific patient without personally seeing those

patients. The Tribunal is satisfied that this is sound practice and more so, in an

interaction with another surgeon with whom, as Dr Balakumar asserts, he was

being particularly careful because he knew that that surgeon’s registration was

subject to conditions.

283. The Tribunal finds that Dr Balakumar adhered to that practice when in

conversation with Dr Hocking on 18 October 2012 and that Dr Balakumar did

not specifically advise Dr Hocking about the proposed use of PRP for Patient A

with respect to Perthes’ disease, and had not indicated approval for

Dr Hocking’s proposed treatment plan for him.

284. The Tribunal finds that a conversation along general lines about Perthes’ disease

probably did take place in October 2012, but the extent of that conversation was

misunderstood by Dr Hocking. Indeed, in his email to Dr Balakumar of

12 September 2013, Dr Hocking conceded that he may not have recorded the

conversation accurately. At the same time, not only did Dr Hocking believe the

conversation occurred, it was apparently not until September 2013 when there

173 Transcript of Proceedings 20 March 2015 at page 287

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was an interchange of emails between Dr Hocking and Dr Balakumar, some

time after the misrepresentation, that Dr Hocking was alerted to the

misunderstanding and the Tribunal so finds.

Allegation 2: Conclusion

285. The Tribunal finds that Dr Hocking should have warned the mother of Patient A

at the time he proposed a PFVO that he might not be in a position to undertake

the surgery, explaining the reason, and referred her to another surgeon. In

addition, the Tribunal has found that objectively Dr Hocking did mislead the

mother when telling her that although he had not used PRP, a colleague,

Dr Balakumar had done so with success.

Allegation 3: Informed consent

286. The allegation is that by informing the mother of Patient A that the use of PRP

had been successfully undertaken and thus reassuring her about the safety and

the utility of the treatment, the consent she provided was not made with full

knowledge of the risks and was thus not fully informed.

Allegation 3: Consideration including evidence

287. The surgeons’ Code requires that ‘A surgeon will ensure consent has been

obtained from the patient (or guardian) before elective operations are

undertaken’.174 ‘Informed consent’ is defined in the doctors’ Code as ‘a person’s

voluntary decision about medical care that is made with knowledge and

understanding of the benefits and risks involved’.175

288. Dr Hocking said in response to a question about what information he gave her:

‘the presentation was a verbal presentation and it was a display of the material

in an electronic format that patients would be given a paper format in the room’.

As he also said he told Patient A’s mother: ‘the process of informed consent

was on how the mixture would be created, saying that it was from the patient's

own blood, informing them of the risks which are lower than with steroid’.

He said of the risks:

I told her about the risks of first of all the anaesthetic, then the risk of the potential for infection, the risk that the procedure would have no effect,

174 Clause 2.2.1 of the surgeons’ Code 175 Clause 3.5 of the doctors’ Code

95

and the risk that the patient could have some pain from the localised injection into the groin at the time of the procedure.

289. In response to a question to Dr Hocking as to whether Patient A’s mother had

fully understood the risks and benefits, he said: ‘Yes. She had provided

informed consent for a similar treatment three times previously’.176

290. That she did understand is supported by the affidavit of Patient A’s mother of

24 May 2013 in which she said that at a meeting with Dr Hocking in September

2012 he had explained fully the reason he was suggesting an injection of PRP

rather than steroids; and had told her about the procedure, the trialling by

Melbourne colleagues of the procedure with good results, the advantages of its

use, and the need for it to be performed under general anaesthetic.177 Patient A’s

mother also confirmed in her statement that she remembered Dr Hocking

referring to a Dr Balakumar and that the use of PRP was experimental. The

affidavit also stated: ‘He has always explained treatment options clearly [and]

has taken time to answer our questions’.

291. The Tribunal also has general information from Dr Hocking’s supervisors and

from the specialists with whom he has recently been working at Burnie and

Tamworth that he appropriately obtains consent from patients.

292. Accordingly, the Tribunal accepts that Dr Hocking told the mother of Patient A

that he had not previously used PRP for a Perthes’ disease patient, that he

informed her about the nature of the PRP procedure, and provided information

to her of the risks, including that this was a novel procedure for him to perform.

In other words, there is no information to suggest that Dr Hocking was not

being totally honest with Patient A and his mother.178

293. In determining whether the consent was fully informed the Tribunal also needs

to determine whether the consent had been influenced by Dr Hocking

misrepresenting to Patient A’s mother that Dr Balakumar had used this

procedure for paediatric patients with some benefit.

176 Transcript of Proceedings 24 March 2015 at page 424177 Affidavit of Patient A’s mother at [4]178 Clause 3.1.9 of the surgeons’ Code

96

294. The Tribunal had no evidence as to whether this additional information

persuaded the parents to provide consent. The Tribunal did have evidence that

Dr Hocking had the confidence of the mother of Patient A, as evident from her

affidavit, that Dr Hocking had been treating a sibling of Patient A’s who also

had Perthes’ disease, that his parents chose to continue using Dr Hocking when

Patient A also developed the disease, and Patient A’s mother said in her

affidavit: ‘I only have good things to say about Dr Hocking. I have always been

happy with the treatment that Dr Hocking has provided for my family’. These

factors suggest that the information about beneficial use of PRP by

Dr Balakumar was probably of secondary importance to the consent they

provided to use of PRP.

Allegation 3: Conclusion

295. The Tribunal is satisfied that Dr Hocking provided relevant information and

advice to the parents of Patient A, including the risk of him performing the

procedure for the first time, and that their consent was informed and would not

have been changed had they been aware that the information about

Dr Balakumar’s use of the procedure in similar circumstances was untrue.

OR 14/31: Specific law to be applied

296. The general issues in relation to the Patient A and Patient B matters are whether

Dr Hocking behaved in a way that constitutes either or all of unsatisfactory

professional performance, unprofessional conduct, or professional

misconduct.179

297. The law to be applied was set out in Matter OR 13/48 of these reasons.

Findings

Allegation 1(a): Use of PRP

298. The Tribunal notes the evidence of Dr Hocking, Professor Little and Dr Young

of the absence of any adverse effects from use of PRP for Patient A.

The Tribunal also makes the following findings:

a) PRP is used in Australia to reduce inflammation in adult patients for

conditions not dissimilar to Perthes’ disease;

179 Section 196(1)(b) of the National Law

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b) the surgeons’ Code recognises the need for training in and use of novel

technology;

c) Dr Hocking had significant North American training and experience in

paediatric treatment;

d) Dr Hocking was not working within a hospital system and was thereby

excused from the requirement to seek prior approval from a hospital

committee for use of novel treatment;

e) Dr Hocking had indicated his willingness to consult more broadly in

future before trialling novel treatments; and

f) the joint report acknowledged that PRP is increasingly being used to

replace treatment with steroids to reduce inflammation.

299. In these circumstances, the Tribunal is comfortably satisfied that Dr Hocking’s

use of this treatment was not below the standard reasonably expected of a

medical practitioner of an equivalent level of training or experience.

Accordingly, under s 196(i)(a) of the National Law Dr Hocking has no case to

answer in relation to this allegation.

Allegation 1(b): Failure to refer

300. The Tribunal prefers the opinion of Professor Little to that of Dr Hocking on

this issue (see the earlier observations on Dr Hocking’s ability to be objective

about his performance in the matters under review). Professor Little, in his

supplementary report of 12 March 2015, had pointed out that had Dr Hocking

referred Patient A in July 2012, the delay which ultimately meant that the

osteotomy (PFVO) was not a viable option could have been avoided.

The Tribunal also accepts his view that had the matter been referred to another

surgeon, that person might have chosen a different treatment plan or been able

to conduct the PFVO surgery within a shorter time frame and prior to the

deterioration of the femoral head.

301. In addition in failing to make a referral, Dr Hocking was in breach not only of

the referral principle but of other principles in the surgeons’ Code requiring the

surgeon to act in the patient’s best interests.180

180 Clause 2.1.1 of the surgeons’ Code

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302. On balance, the Tribunal is comfortably satisfied that at the time he proposed

surgery for Patient A in the form of the PFVO, he was aware that he might not

be able to conduct the surgery and that to fail to refer Patient A to an alternative

surgeon in July 2012 was conduct which was below the judgment and care

reasonably expected of an orthopaedic surgeon of an equivalent level of training

or experience as evidenced by its breach of the surgeons’ Code. Dr Hocking

behaved in a way that constituted unsatisfactory professional performance:

National Law s 196(1)(b)(i).

Allegation 2: Misrepresentation

303. The Board contended that Dr Hocking engaged in professional misconduct by

misrepresenting to Patient A’s parents that Dr Balakumar had used PRP

treatment for Perthes’ disease in children with success, and that Dr Balakumar

had endorsed the use of PRP treatment for Patient A.

304. Dr Hocking contended that there is no case to answer concerning this allegation.

305. The Tribunal is satisfied that although Dr Hocking should have been more

careful in his recollection and recording of the conversation, and should have

sought permission to refer to Dr Balakumar’s statements in his conversations

with Patient A’s parents, and their general practitioner, his mistaken belief that

Dr Balakumar had successfully used PRP on juvenile Perthes’ disease patients,

was an innocent mistake and did not fall below any of the standards in section 5

of the National Law. He did not thereby engage in unsatisfactory professional

performance. A misrepresentation made in good faith albeit, incorrectly, is not

conduct which meets that standard.

306. Overall, the Tribunal finds that Dr Hocking did not behave in a way that

constituted unsatisfactory professional performance in relation to allegation 2.181

Allegation 3 - Failure to obtain informed consent

307. The Board contended that Dr Hocking engaged in professional misconduct by

failing to obtain informed consent from the patient’s parents before

administering the treatment.

181 Section 196(1)(b)(i) of the National Law

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308. Dr Hocking contended that he obtained appropriate informed parental consent

in relation to the use of PRP and he has no case to answer concerning this

allegation.182

309. The case law has acknowledged that ‘What is required for a fully informed

consent is a question of fact in all the circumstances of each case and there is no

precise formula which will determine in all cases if fully informed consent has

been given’.183 Generally it is said that consent is informed where the patient (or

guardian) can be said ‘to understand fully what is proposed’184 but ‘the choice is

meaningless unless it is made on the basis of relevant information and

advice’.185

310. The Tribunal has found that Dr Hocking did obtain the consent of Patient A’s

mother in accordance with these standards. This element of the allegations does

not amount to unsatisfactory professional performance. Therefore in accordance

with section 196(1)(a) of the National Law Dr Hocking has no case to answer in

relation to this allegation.

Conclusion OR 14/31

311. In summary, the Tribunal has found that Dr Hocking had no case to answer

from his use of PRP, that his failure to refer was unsatisfactory professional

performance, but that he did not knowingly misrepresent the safety of the

treatment to Patient A’s mother, and there is insufficient evidence for the

Tribunal to be satisfied that her consent was not informed.

312. In accordance with the matters raised at the hearing and referred to in paragraph

3 above, as Dr Hocking has not been ‘completely vindicated’ by the Tribunal in

OR 13/48 and OR 14/31 the Tribunal will consider Dr Hocking’s conditions

appeal before determining the penalty to be imposed in the Patient A and Patient

B matters.

182 Dr Hocking’s Closing Submissions [6.14], [6.16]183 Maguire v Makaronis (1997) 188 CLR 449 at 466184 Department of Health & Community Services v JWB & SMB (Marion’s

Case) (1992) 175 CLR 218 at [19]185 Rogers v Whitaker (1992) 175 CLR 479 at [14]

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Matter OR 14/04 – Appeal Conditions

313. OR 14/04 is an appeal by Dr Hocking, pursuant to section 199(1)(f) of the

National Law against the decision of the Board made on 5 December 2013 to

refuse to remove conditions imposed on his registration, and to maintain three

conditions on his registration.

Background

314. In early April 2011, two notifications were made in relation to Dr Hocking.

On 19 April 2011, as a result of an investigation into a notification regarding

four other incidents, the Board advised that it intended to take immediate action

to suspend Dr Hocking’s registration.186 The proposed ‘immediate action’ could

be taken by the Board where it reasonably believed that, because of the

registered health practitioner’s conduct, performance or health, the practitioner

posed a serious risk to persons, and it was necessary to take immediate action to

protect public health or safety.

315. In response, on 5 May 2011, Dr Hocking entered into a voluntary

undertaking.187 The undertaking was in the following terms:

I will undertake no elective adult or paediatric open hip or pelvic surgery, and involve one of my senior colleagues in the management of any trauma surgery involving major pelvic injuries, pending completion of the formal AHPRA investigation.

316. The voluntary undertaking had the effect of forestalling the Board’s suspension

of Dr Hocking’s registration.188 Dr Hocking was subject to that undertaking

between 5 May 2011 and 21 June 2012. The undertaking was notified on the

National Register.189 Accordingly, the undertaking was in place on

15 February 2012 when Dr Hocking performed the arthroscopy on Patient B,

the subject of the notification in Matter OR 13/48.

317. On 18 April 2012, following the completion of its investigation, the Board

decided to impose conditions on Dr Hocking, final wording to be confirmed.190

That decision, following submissions and negotiation, was made on

186 Section 156(1) of the National Law 187 Sections 155 & 156 of the National Law 188 Section 155(b) of the National Law 189 Section 225(k) of the National Law 190 Section 178(2)(c) of the National Law

101

21 June 2012, and took effect from the date of notification to Dr Hocking,

namely, 26 June 2012. The Board imposed six conditions on his registration to

practice which were as follows:

1. To be supervised in situ by Dr Gillespie or Dr Morris in the management of any trauma surgery involving major pelvic injuries;

2. Not to undertake any elective adult or paediatric open hip or pelvic surgery outside of the re-training as outlined at conditions 4 and 5;

3. To be mentored by Dr Hardman and ensure that Dr Hardman provides to the Board reports on Dr Hocking’s progress on a six monthly basis;

4. To undertake a period of re-training in the areas of open adult hip surgery overseen by Dr Gillespie for a period of time not shorter than six months, and until Dr Gillespie has indicated to the Board’s satisfaction that Dr Hocking possesses the required skills, competence and training in these procedures;

5. To undertake a period of re-training in the areas of adult and paediatric hip and pelvic surgery in a facility approved by the Board and the Australian Orthopaedic Association overseen by a Board approved trainer for a period of time not shorter than six months and until the Board approved trainer has indicated to the Board’s satisfaction that Dr Hocking possessed the required skills, competence and training in these procedures; and

6. To continue undertaking the broad scope of previously unrestricted surgeries.

318. Three orthopaedic surgeons were appointed by the Board under whose

supervision Dr Hocking was to conduct surgery. They were Dr Peter Morris

and Dr Michael Gillespie, orthopaedic surgeons based in Canberra, and

Dr David Young, who practises in Melbourne. Dr Hocking completed a course

of retraining in adult arthroscopy and complex open hip procedures, including

PAOs, under Dr Young.191In addition, an appointment was made of a mentor,

namely, Dr David Hardman, a consultant vascular surgeon in Canberra.

319. On 9 July 2012, a further notification was received by the Board in relation to

Patient B, and on 23 August 2012, the Immediate Action Committee of the

191 Dr Hocking’s Closing Submissions [8.8]

102

Board decided it would impose further conditions and would investigate

Dr Hocking.192

320. The additional conditions imposed by the Board on Dr Hocking on 4 September

2012 were as follows:

7. Not to perform any adult or paediatric surgery without a Board approved supervisor present in the operating procedure for the entirety of the procedure.

8. Not to undertake arthroscopies on children and adolescents eighteen years or under.

9. To undertake full-time remediation and re-training of not less than 40 hours per week for a minimum of six months under the supervision of an orthopaedic surgeon approved by the Board.

10. Supervisor reports to be provided at agreed intervals by the approved orthopaedic surgeon in relation to condition 9 only.

11. That a review of all decision to undertake surgical procedures by a Board approved senior colleague occur prior to commencement of procedures.

12. A review of all the conditions is to occur at the conclusion of the investigation or in twelve months’ time.

321. Dr Hocking sought review by the tribunal of the Board’s decision on

11 September 2012 and applied to the ACT Supreme Court for a stay of

conditions 7-12. By order dated 12 September 2012 the Court granted a stay of

conditions 7 and 9. In effect these were the substantive conditions. The Supreme

Court in that order also accepted Dr Hocking’s undertakings to the Court [that]

he would:

a) Not undertake arthroscopies on children and adolescents 18 years or

under.

b) Not undertake peri-acetabular193 osteotomies194 on children and

adolescents 18 years or under.

192 Section 160(1) of the National Law 193 Peri-acetabular osteotomy is a surgical treatment for hip dysplasia

which by realignment of the acetabulum over the femur preserves and improves the function of the hip joint.

194 An osteotomy is a surgical procedure that involves cutting of the bone.

103

c) Undertake remediation and retraining at an interstate location for a

minimum of six months under the supervision of Dr David Young, noting

that written certification will be required from Dr Young stating that

Dr Hocking can safely and independently perform the procedures referred

to in (a) and (b) above by himself at the completion of the six months’

retraining.

322. The outcome was that between 12 September 2012 and 4 March 2013,

Dr Hocking was subject only to conditions 1-6 and was bound by the

undertakings he had given to the ACT Supreme Court.

323. On 28 February 2013, the Board notified Dr Hocking that it proposed to replace

conditions 1-6 with conditions 1-3 and invited submissions from him. On

4 March 2013, the Board removed conditions 7-11 but decided to refer the case

to the Performance and Professional Standards Panel of the Board.195

Dr Hocking was advised of this decision on 13 March 2013. On 20 March 2013,

Dr Hocking indicated he was not prepared to accept the revised conditions.

324. On 16 April 2013 the Board decided to amend the wording of the proposed new

conditions to add the word ‘elective’ to condition 1. On 8 May 2013 the Board

notified Dr Hocking that as it considered he ‘has practised orthopaedic surgery’

unsatisfactorily, and conditions 1-3, as amended, would be imposed. Those

conditions are:

Dr Hocking may perform the broad scope of orthopaedic surgery subject to the following limitation:

1. No unsupervised open elective hip or pelvic surgery apart from routine primary adult hip replacement.

2. Condition 1 will be reviewed upon completion of re-training to the satisfaction of the Board in the surgeries restricted by condition one

3. These conditions to be reviewed within six months of notice of their imposition.

325. On 18 April 2013, a notification concerning Patient A was received by the

Board. On 24 April 2013 Dr Hocking was advised that the Board intended to

take immediate action to suspend his registration. This action was taken on

195 Section 182 of the National Law

104

26 April 2013. Dr Hocking appealed to the tribunal for review of the Board’s

decision. On 6 May 2013, the tribunal stayed the suspension decision but on

8 May 2013 imposed an extra condition, namely, that Dr Hocking was not to

perform any elective paediatric surgery. Conditions 1-3, as amended remained

in place.

326. On 18 October 2013 a Performance and Professional Standards Panel

established by the Board conducted a hearing into the Patient B matter.

On 5 December 2013, following the report of the Panel, the Board decided that

conditions 1-3 would remain in place for a further six months, reviewable in

June 2013. These conditions are still in force. Dr Hocking has not practised

paediatric elective hip and pelvic surgery, other than trauma surgery, for four

years, and in a letter dated 15 May 2014, he pointed out that he closed

The Canberra Hospital Paediatric Orthopaedic Clinic to new patients in

May 2013 and to all patients in August 2013. He said he no longer intends to

perform paediatric surgery.196

327. On 1 April 2014, Dr Hocking again wrote to the Board requesting that the

conditions on his registration be removed. The Board responded on

22 April 2014, that as the ‘conditions’ matter was before the Tribunal, it was

inappropriate for the Board to take action at that time.

OR 14/04: Law to be applied

328. Dr Hocking has appealed the decision of the Board to refuse to change or

remove conditions 1 to 3. This matter is an appeal under National Law197.

Section 199(1)(f) provides as follows:

199 Appellable decisions (1) A person who is the subject of any of the following decisions (an appellable

decision ) may appeal against the decision to the appropriate responsible tribunal for the appellable decision—

….

(f) a decision by a National Board to refuse to change or remove a condition imposed on the person's registration or the endorsement of the person's registration;

196 Transcript of Proceedings 20 March 2015 at page 290197 ss 199(1)(f) and 202

105

329. Section 202 provides as follows:

  202 Decision

(1) After hearing the matter, the responsible tribunal may—

        (a)  confirm the appellable decision; or

        (b)  amend the appellable decision; or

        (c)  substitute another decision for the appellable decision.

(2) In substituting another decision for the appellable decision, the responsible tribunal has the same powers as the entity that made the appellable decision.

330. The nature of the decision making process to be made by the tribunal is not

otherwise defined. Nonetheless, it has been accepted by Murrell CJ in Hocking

v Medical Board of Australia [2014] ACTSC 48 that the decision of the

Victorian Court of Appeal in Kozanoglu v The Pharmacy Board of Australia

[2012] VSCA 295 (Kozanoglu) should be regarded as authoritative in the ACT.

That decision provides that the tribunal, in such proceedings, is to make its

decision according to a modified form of merits review. The role of the tribunal

was described in by Murrell CJ in these terms at [121]:

… in exercising its jurisdiction, the ACAT is to take into account the material that was before the Board when it made its decision and any additional evidence that bears directly upon the position as it was when the original decision was made.

331. The decision the Tribunal makes must be consistent with s 3(3)(c) of the

National Law:

Restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of appropriate quality.

332. In the absence of any indication in the National Law of the specific findings

which can be made by a tribunal on appeal the Tribunal is guided by the

provisions in section 196 which relate to the role of a responsible tribunal.

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Consideration

333. The Tribunal has decided the Patient A and Patient B matters. The Tribunal has

made findings in those matters which are set out in paragraphs 229 and 311

above.

334. In light of these findings, the Tribunal has to decide whether the conditions on

Dr Hocking’s registration should be maintained or removed. A condition on

registration may only be removed once a review period has come to an end, and

then only if the Tribunal reasonably believes there has been a material change in

the health practitioner’s circumstances.198

335. The review period has come to an end, and it is for the Tribunal to decide

whether to remove the existing conditions on Dr Hocking’s registration if it is

satisfied that there has been a ‘material change’ in Dr Hocking’s circumstances.

The Tribunal must make that decision only if it ‘reasonably believes’ such a

change has occurred. A ‘material’ change according to the Shorter Oxford

English Dictionary means a change which is ‘4. In a material degree;

substantially, considerably’. The word ‘material’ is an evaluative threshold, and

is more than de minimis.199

336. A further decision required of the Tribunal is whether Dr Hocking’s practice of

surgery should be subject to no, or any other, conditions. If the Tribunal does

decide to impose further conditions, it must specify a review period for those

conditions.200

337. In making its decision the Tribunal must take into account the guiding

principles of the registration and accreditation scheme under the National Law,

particularly, that: ‘…restrictions on the practice of a health professional are to

be imposed under the scheme only if it is necessary to ensure health services are

provided safely and are of an appropriate quality.201

198 Section 126(3)(a) National Law199 Comcare v Sahu-Khan (2007) 156 FCR 536 at [15] per Finn J200 Section 196(3) of the National Law 201 Section 3(3)(c) of the National Law

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Contentions

338. The Board contended that conditions 1 and 3 should remain in place at least

until the determination of the outcome of the Patient A and Patient B matters,

including, if applicable, as to penalty.

339. The Board submits that as the joint report of the expert witnesses for both

parties (Dr Young, and Dr Fletcher and Dr Pincus, both orthopaedic surgeons)

indicates, all the experts were ‘in agreement that Dr Hocking has completed his

period of additional supervision and retraining as required by the ACT Medical

Board’. That means that condition 2 of the three conditions, namely, that

Dr Hocking was to complete ‘re-training to the satisfaction of the Board in the

surgeries restricted by condition 1’ is satisfied’. The Tribunal agrees that the

evidence supports that submission, that this is a material change, and that

condition 2 is satisfied.

340. In relation to conditions 1 and 3 the Board submits that if Dr Hocking is not

completely vindicated in Patient A and Patient B matters, depending on how

significant are the findings in those matters, the Tribunal will need to determine

whether or not the penalty it decides to impose supersedes any of the

conditions.202

341. Dr Hocking contended that the conditions to which his registration remains

subject should be removed as there was:

a) no evidence that such conditions were required;203 and

b) the Board failed to accord Dr Hocking procedural fairness contrary to the

requirements of the National Law.204

342. No particulars were provided by Dr Hocking as to this second contention

concerning breach of procedural fairness, and the Tribunal has accordingly

taken it to have been abandoned. In any event, any previous breach of

procedural fairness would have been cured by the Tribunal’s hearing which took

202 Transcript of Proceedings 23 March 2015 at page 10203 Section 178 of the National Law 204 Section 179 of the National Law

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place over eight days, and provided a full review of both facts and law, thus

providing a comprehensive opportunity for Dr Hocking to be heard.205

343. Counsel for Dr Hocking listed the following reasons his practice was no longer

a threat to public safety:

a) successful participation in mentoring with Professor Hardman and

supervision with a range of Orthopaedic Surgeons;

b) development of clear insight into some of the shortcomings in his

conduct;

c) the extended period in which Dr Hocking has already practised under

conditions and the successful completion of the retraining required by the

Board; and

d) the undertaking that Dr Hocking is prepared to give.

Evidence

344. There was some assistance in reports by supervisors, mentors and experts,

Dr Young, Dr McNicol, Dr Morris, Dr Gillespie Dr Fletcher, Dr Prisell

(Orthopaedic Surgeon, Burnie), Mr Wainwright (Orthopaedic Surgeon,

Tamworth) and Dr Finch, (Orthopaedic Surgeon, Tamworth). In summary their

evidence as to Dr Hocking’s skills and his improved practice is as follows:

a) his technical skills are high: Dr Young: 18.1.2013; 11.7.2014;

Dr Morris, 30.01.2013 and 18.4.2013; Dr Fletcher, 6.11.2014; and

above those of his locum peers: Mr Wainwright, 16.3.2015; Dr Finch,

17 March 2015;

b) he is safe to perform standard hip replacement and pelvic surgery without

supervision: Dr Gillespie, 24.1.2013; Dr Morris 30.1.2013 and

13.5.2013; Dr Young, 18.1.2013; Dr Fletcher, 6.11.2014;

c) he is safe to perform complex hip and knee replacement surgery:

Dr Young, 11.7.2014; Dr Fletcher, 6.11.2014;

d) he should have a mentor for difficult or unusual hip surgery: Dr Morris,

18.4.2013; Dr Gillespie, 24.1.2013 and 31.10.2013;

205 Marine Hull & Liability Insurance Co Ltd v Hurford (1985) 10 FCR 234 at 246 per Wilcox J, whose judgment was affirmed by the Full Court in Marine Hull & Liability Insurance Co Ltd v Hurford (1985) 10 FCR 234

109

e) his communication, interpersonal skills, collegiate relations and

professional responsibility awareness is of a high quality: Dr Young,

18.1.2013; Dr Hardman 10.4.2014; Dr Prisell, 20.3.2015; Dr Finch,

17.3.2015;

f) he has developed insights into his failings; Dr McNicol, 14.9.2011;

Dr Gillespie, 24.1.2013; Dr Morris, 31.1.2013; Dr Hardman,

10.4.2014;

g) the conditions on his registration should be removed: Dr Young,

18.1.2013 and 11.7.2014; Dr Morris, 26.9.2011, but in 18.4.2013, his

report said only for routine hip replacement surgery; Dr Fletcher,

6.1.2014; Dr Finch, 17.3.2015.

345. The Tribunal gives weight to the supplementary report of Professor Hardman,

as mentor, dated 24 March 2015. In that report Professor Hardman said, in his

opinion, Dr Hocking is now aware of the gravity of the problems that have beset

his practice and understands the contribution of the difficult interpersonal

relationships, due to his arrogance, with both patients and colleagues; he

understands that the community wants him to be a competent surgeon and to

work with empathy and insight. He has learned that success in surgery is

directly related to working in a team where you recognise both your strengths

and weaknesses, and he has developed a sense of personal responsibility for

unwanted surgical outcomes and a real sense of advocacy and urgency in trying

to obtain the best outcome. He concluded his report by saying:

This journey has been difficult for Dr Hocking, but the last three years

have seen a real humility and responsibility inform a sense of professional

commitment. I am uncertain as to the Board’s desired endpoints from my

involvement as a personal mentor, but I am sure that Dr Hocking in 2015

is not the same person whom I met three years ago. This is to the

advantage of the community.

346. Some additional support for Dr Hocking’s submissions was apparently provided

by the following comments: Dr Hocking’s ‘personal statistics are consistent

with his colleagues’ (Dr McNicol. 14.9.2011) and ‘Dr Hocking’s cases … have

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not been substantially better or worse than the other orthopaedic surgeons apart

from [one] catastrophic case’ (Dr Morris, 26.9.2011).

347. Despite these assertions, the Tribunal finds it hard to accept that any

orthopaedic surgeon who, at one point, had the Board investigating 44 cases of

conduct about which complaints had been made,206 would not be able to escape

a finding that there may be a risk to public safety if that person continued to

practise in the areas subject to the complaints. Even though only a small

proportion of those cases resulted in adverse findings, the number of complaints

made is disturbing. In addition, the Tribunal notes that both Dr McNicol’s and

Dr Morris’s comments were made in 2011, some four years ago, have not been

tested in a hearing, and these factors detract from their weight.

348. The Tribunal takes into account the view of Professor Little in his report of

12 May 2013 that AHPRA, and the Tribunal, need to address to what extent the

restrictions on Dr Hocking’s practice influence the continued management of

his patients with conservative therapy. As Professor Little said, ‘allowing a

specialist to continue to treat patients so long as they don’t need an open

operation may not be ideal as it could alter the behaviour of the surgeon.’

That issue is a factor relating to public safety.

349. Dr McNicol repeated at the hearing that Dr Hocking had learned from his

mistakes, that he had insight into what occurred, and that ‘notwithstanding that

incident, he can now be trusted as a competent and reliable surgeon’.207

Dr Hocking

350. Dr Hocking maintains that his performance and skill level means his practice no

longer raises issues of public safety. In summary, the changes he claims have

been to his practice are as follows, according to the dates of his reports,

statements, or affidavits for the purposes of his various proceedings since 2011:

a) 20.4.2011: I acknowledge I have had surgical complications, but I

participate in peer review, personally review my cases and reflect upon

206 Statement by Dr Hocking, 16 February 2015: ‘AHPRA has now investigated the treatment that I provided for approximately 44 of my former patients’

207 Transcript of Proceedings 19 March 2015 at page 180

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my cases and look for improvements in my practice, made changes

[including] management of hip dysplasia both operatively and non-

operatively, and I will continue to provide a safe, scientifically based,

reflective orthopaedic practice.208

b) 19.9.2011: [Concerning a case in which following surgery by Dr Hocking,

a woman needed an amputation]. I accepted comments and benefited from

advice and opinion of the review panel and have introduced ‘a

modification of surgical technique with respect to handling such issues. I

would involve surgical colleagues earlier, and seek another opinion. I

have reviewed my own practices and would be careful to include relevant

information in the operation report and the record and be clearer in

writing in the medical notes, including times and orders and directions

and would be careful how I communicate to colleagues and follow things

up.

c) 19.9.2011: [In relation to the notification concerning three other patients.]

Dr Hocking’s statement included:

I recognise that three of the patients all had surgical complications

that occurred within a short time frame, and have reviewed my

practice to identify any indications of why that should be so, to

ensure that my surgical complication rate is not outside acceptable

limits, and that my skill and clinical judgement is not open to further

criticism; [6.4’]. [7.2] The changes I have made as a result of these

notifications include improved clinical decision making as a result

of discussion and peer review, examination and re-examination of

my surgical technique to look at ways of minimising risk and I am

much more aware of other surgeon’s strategies for avoiding risk

and have taken note of advice. As a result I have a higher index of

suspicion of surgical injury, appreciate the need to call for

assistance early, and to consult more readily in the intraoperative

phase, if necessary. I undertake to take advantage of the collegiate

support that is available, to be careful to communicate directions

and requirements clearly, such as to call me, or to call a consultant,

208 Attachment to letter to his legal representative

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and to document this in the notes, to clarify directions, or post-

operative instructions and record these in the notes.

d) 1.4.2014: [In a letter to the Board] During this time I have

complied with all the undertakings/conditions that have been placed

on me and I have arranged and completed to the satisfaction of my

supervisors and mentor the re-training the Board requested in the

areas of adult elective hip and pelvic surgery to the level of a

subspecialist orthopaedic surgeon. The result is that Dr Hardman

was satisfied that the concerns that the Board had in relation to his

professionalism were resolved through this mentoring process. He

noted that the adult notifications concern patients which predated

the period of retraining and therefore any concerns with respect to

his judgement/technical skills should be ameliorated by the period

of supervision already undertaken.

e) 15.5.2014: [In relation to Patient A]. Dr Hocking said: he

appreciated the importance of practising within a team environment,

and had a clearer understanding of the ways in which innovative

practice is introduced; recognised that novel treatment needs to be

introduced in a formalised peer supported way and through a

structured clinical trial; the events reinforced his understanding of

the ethical principles that govern surgical practice. He went on: ‘I

have also worked closely with Senior Orthopaedic Surgeons who

have helped hone my technical skills and increased my awareness of

potential problems that could occur at particular stages of the

surgical procedure, and had highlighted the importance of patient

communication’. As a consequence, he said he had established a

network of peers, had reflected on ways to improve his choices and

his range of responses, he would no longer work in professional

isolation, and he had established improved interdisciplinary peer

networks through these discussions.

351. The Tribunal notes that there is noticeable repetition in these statements over

the last three to four years, and that Dr Hocking’s claims to have acquired

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increased skills, knowledge and understanding have been belied by further

complications with his practice.

352. At the same time, the Tribunal notes that the supervision reports by

Dr Gillespie, Dr Young, Dr Morris and Dr Hardman illustrate that over the

period of their supervision or mentoring, Dr Hocking demonstrated a marked

improvement in clinical decision-making, collegiate interaction and technical

performance. Those reports, not all of which have been fully supportive as the

qualified remarks of Dr Gillespie illustrate,209 have, however, been reinforced by

the most recent reports of medical experts with whom Dr Hocking has worked

in Burnie and at Tamworth. In particular the undated report of Dr Finch,

orthopaedic surgeon in Tamworth who, conscious of the conditions to which

Dr Hocking was subject, closely supervised him in every aspect of his work.

His conclusions were that Dr Hocking performed:

… as a competent caring orthopaedic surgeon; was ‘well above average’ compared to several other recent locums; that his ‘informed consent was above average’; showed ‘sound decision making, [he] was well read, accepted advice and showed no major variances in standard orthopaedic practice to common orthopaedic problems’; and he had ‘no major concerns regarding his competency or surgical ability.

353. Those remarks led to his opinion that Dr Hocking should be able to function as

an independent orthopaedic surgeon, and are pertinent for the Tribunal’s

decision-making.

354. The joint report of Dr Fletcher and Dr Young, dated 17 February 2015 (joint

report), suggested a number of advisory notes for Dr Hocking’s future practice.

The joint report recommended:

1. The current restrictions imposed upon Dr Hocking’s AHRPA restrictions be lifted, subject to completion of medical-legal processes and satisfactory outcomes.

2. Dr Hocking be required to pre-operatively discuss all complex cases (including complex hip and knee surgery cases) with suitably qualified

209 Dr Gillespie’s report of 24 January 2013 said he ‘has a good understanding of the surgical approach/dissection for routine hip replacement surgery’ and that he ‘is safe to proceed with routine straightforward primary hip replacement cases without direct in-theatre surgical supervision’ (at 1, 2)

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surgeons. This should be followed up by a presentation of all post-operative outcomes of the same procedures during the post-operative period.

3. Dr Hocking specifically highlight his arthroplasty audit, including the audit of review arthroplasty and including the NJRR outcomes as part of his CPD, audit and peer review process.

4. Dr Hocking practise within a departmental setting in the public hospital environment and within a group session in the private sphere.

5. That for the next 12 months, consideration should be given to organizing a theatre arrangement where Dr Hocking’s major cases are performed in a location and time such that a second surgeon may join the surgery if the clinical complexity of the case requires ‘buddy’ support.

6. These arrangements give the right balance between patient safety and natural justice to Dr Hocking and demonstrate good clinical governance.

355. Dr Pincus disagreed and said that the current restrictions on the practice of

Dr Hocking should be maintained. He also was of the opinion that

recommendations 2 to 5 were impractical.

356. In evidence, Dr Hocking said the recommended conditions were feasible

restrictions in a limited number of hospitals, including the North West Regional

Hospital in Burnie, where he worked in 2014, and subsequently the regional

hospital in Tamworth where he is currently employed. As he said provided he

could continue in Tamworth Rural Regional Hospital:

I would be able to practice (sic) with the proposals that have been suggested. If, however, conditions are placed that jeopardise that work, I may struggle to find any other department that operates in such a capacity to allow me to fulfil the suggestions that Dr Fletcher made.210

357. The Tribunal is aware that Dr Gillespie and Dr Morris, two of his supervisors,

were of the opinion that Dr Hocking still required support and a form of

supervision for more complex hip and pelvis surgery. That view is shared by

Dr Pincus. At the same time, the reports of Dr Gillespie and Dr Morris were

written two years ago and Dr Pincus has not personally supervised Dr Hocking.

His contact with Dr Hocking was as a member of the Performance and

210 Transcript of Proceedings 20 March 2015 at page 291

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Professional Standards Panel which considered a referral in relation to

Dr Hocking in October 2013.

358. Counsel for Dr Hocking has indicated that Dr Hocking is willing to provide an

undertaking to the Tribunal that he will not perform any elective paediatric

procedures (that is, the types of procedures where children would be referred to

a Children’s Hospital), aside from trauma or emergency surgery (which includes

follow up procedures such as removal of instrumentation etc).

359. The Minutes of the Board meeting of 16 April 2013 noted that all trauma

[surgery] in Canberra is performed in the context of a large teaching hospital

and is subject to review and audit by Dr Hocking’s peers. The Tribunal notes

that this practice is likely to be replicated throughout the hospital system.

Therefore, a mechanism exists and trauma work is doing what needs to be done

to stabilise the patient’. The implication from this comment was that

Dr Hocking did not need to have any condition on his registration relating to

trauma surgery. That is relevant to the issue of conditions.

360. Reference was made at the hearing to Vissenga v Medical Practitioners Board

of Victoria [2004] VCAT 1044 in which Morris J said at [33]:

Reasonable people are tolerant of occasional lapses, particularly if these lapses do not form a consistent course of conduct, or, if taken separately are insufficiently serious to warrant intervention by those charged with acting on behalf of the State.

361. The Tribunal concurs with this view. Having said that, the history of this matter

indicates that there is a ‘consistent course of conduct’ by Dr Hocking which

warrants the continuation of some restrictions. Dr Hocking’s registration has

been continually subject to conditions or an undertaking since 2011, that is,

nearly 4 years, and were continued despite regular challenges by Dr Hocking.

That, of itself, indicates a continuation of a pattern of performance which was

sufficiently below standard to be subject to limitations.

362. Against that, the Tribunal notes that there has been a considerable diminution in

the volume of complaints made about Dr Hocking’s performance. There were

five notifications in 2013, but only two, or if the more recent Tasmanian

notification is included 3, notifications in 2014. This compares with 9 in 2012,

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and more in previous years.211 Even allowing for the fact that Dr Hocking’s total

workload has reduced significantly (he undertook 83 surgeries in 2013 and only

32 in the six months to July 2014) the reduction in numbers of notifications as a

proportion of his workload is material. Dr Hocking has also, in part because of

the conditions imposed upon him, given up his paediatric practice. Nonetheless,

these are ameliorating factors.

363. In addition to the diminution of his ‘error rate’, the Tribunal is conscious that

Dr Hocking has undergone a considerable period of retraining and close

supervision, he does appear to have learned lessons from the experiences over

the last few years, and the most recent reports of his performance are

encouraging. The Board has agreed that he has satisfactorily concluded his

period of retraining, and the Tribunal considers there would be no value for a

continuation of that condition.

364. The joint report of experts states that the conditions should be lifted subject to

‘satisfactory outcomes’. It is not clear what is meant by that expression.

The similar comment by the Board only referred to completion of the Tribunal

processes, not necessarily tying them to a complete exoneration of Dr Hocking.

365. The Tribunal has found that some of the allegations made against Dr Hocking

are made out and that he has not met the standards against which his conduct as

a health practitioner is to be measured. At one level, that is not a satisfactory

outcome. At the same time, the Tribunal is aware that the events to which those

allegations relate occurred some years ago. Since then, although another

notification was received in the second half of 2014, there is evidence of a

significant improvement in Dr Hocking’s performance.

Conclusion: OR 14/04

366. In summary, the Tribunal accepts that there remain some concerns about

Dr Hocking’s performance and his capacity for insight into, and self-reflection

about, fundamental matters relating to character and his own conduct.212

However, the Tribunal also accepts that the retraining to which he was subject

211 Exhibit 21212 Board’s Closing Submissions 27, [127]

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has been satisfactorily completed, and that the close supervision to which he

was subject had achieved its purpose at that time.

367. Accordingly, the Tribunal finds that the decision to refuse to remove conditions

1-3 to which Dr Hocking’s registration is subject should be set aside and

substituted by the new conditions in Order 12 in accordance with the

recommendations in the joint report of Dr Fletcher and Dr Young.

368. Dr Hocking has indicated that the recommendations in the joint report of

Dr Fletcher and Dr Young are manageable provided he practises in an

environment akin to the hospitals in Burnie and Tamworth. The understanding

of the Tribunal is that Tamworth Rural Regional Hospital is intending to offer

him an extended contract and assuming that transpires, the recommended

conditions should not be unduly restrictive and provide the correct balance

between permitting him to practise his profession, while taking account of the

safety of the public.

Consequences of Findings in OR 13/48 and OR 14/31

369. The conditions in Order 12 take into account all of the Tribunal’s findings in

these matters. They are a global response to the outcomes.

370. The Tribunal also finds that the undertaking offered by Dr Hocking should be

accepted. Although it has accepted that he no longer practises or intends to

practise in paediatric surgery, other than trauma surgery, where he is supported

by a team, the Tribunal considers as a matter of public safety that the

formalising of that position should be placed on the public record.

371. The Tribunal is satisfied that these conditions are consistent with s 3(3)(c) of the

National Law.

COSTS

372. The parties have agreed that they will bear their own costs.

………………………………..Ms E. Symons – Presidential Member

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HEARING DETAILS

FILE NUMBER: OR 13/48, OR 14/04 and OR 14/31

PARTIES, APPLICANT: Medical Board of Australia (OR 13/48 and OR 14/04)

Dr Richard Hocking (OR 14/31)

PARTIES, RESPONDENT: Dr Richard Hocking (OR 13/48 and OR 14/04)

Medical Board of Australia (OR 14/31)

COUNSEL APPEARING, APPLICANT Mr N J Beaumont SC, with Ms R Withana (OR 13/48 and OR 14/04)

Mr R Crowe SC (OR 14/31)

COUNSEL APPEARING, RESPONDENT Mr R Crowe SC (OR 13/48 and OR 14/04)

Mr N J Beaumont SC, with Ms R Withana (OR 14/31)

SOLICITORS FOR APPLICANT Australian Government Solicitor (OR 13/48 and OR 14/04)

Minter Ellison (OR 14/31)

SOLICITORS FOR RESPONDENT Minter Ellison (OR 13/48 and OR 14/04)

Australian Government Solicitor (OR 14/31)

TRIBUNAL MEMBERS: Ms E Symons, Presidential Member

Ms R Creyke, Senior Member

DATES OF HEARING: 16, 18-20, 23-24, 26-27 March 2015

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