Conduct issues: Expert evidence & Controversial procedures

Health Care Complaints Commission v Bours (No 1) [2014] NSWCATOD 113 appears to have been an emotive matter, given the observations of the Tribunal at [10] that the practitioner took the view that the proceedings were a ‘witch-hunt‘ and that the proceedings came about in part because ‘orthopaedic surgeons viewed podiatric surgeons with disdain and disrespect, whereas, the training and methodology of podiatric surgeons was infinitely superior as it related to foot surgery as a discrete specialty.’

At [30] – [31], the defendant objected to the evidence of orthopaedic surgeons, an objection which did not prevail.

Also of general relevance was the ruling at [33] regarding admissibility of reports brought into existence for civil proceedings:

Rulings were also made as to the admissibility of reports that had originally been supplied for the purposes of proceedings under the Civil Liability Act 2002 (NSW). Such evidence was not excluded in this matter on the basis of its origin in other proceedings. The Tribunal is capable of distinguishing between the parts of the evidence from negligence cases that are relevant and those that are not. Clearly, any evidence of breach of duty of care, and so on, does not necessarily equate to unsatisfactory professional conduct or professional misconduct under the National Law. However, there was the real possibility that such reports would deal with factual content directly relevant to these proceedings, and as such they were not excluded despite the objection of the respondent.

Complaints were subsequently made that the practitioner called and sent text numerous text messages to an expert witness retained by HCCC at a frequency that made them harassing and threatening in nature. That was found proven at [509] and a finding of unsatisfactory professional conduct made at [518].

A different issue of general interest addressed in the findings was a complaint regarding adequate informed consent for minimally invasive techniques, said to be considered ‘controversial’ by other podiatric and orthopaedic surgeons: [235]. The complaint was not proven as the patient knew that the proposed procedure was ‘not mainstream‘, however in passing at [250] the Tribunal commented:

What can be gleaned from this short synopsis of the evidence before the Tribunal is that there is a range of opinion about whether MIS is controversial, novel, experimental, evolutionary, or topical. Whether that of itself leads to a conclusion that the technique is controversial is a reasonable question to ask.