Lack of candour (adverse event; registration conditions) & novel treatment: Disciplinary responses

Medical Board of Australia v Hocking [2015] ACAT 44 (Occupational Discipline) required the tribunal to consider allegations in respect of two matters, where unsatisfactory professional conduct was found:

  • failing to disclose a restriction on registration which had the potential to affect the treatment the doctor was able to provide to the patient;
  • by creating a second report of a hip arthroscopy some 3 or 4 months after the operation (see [29]), in order to indicate that the symptoms suffered by the patient following hip arthroscopy were not due to the way the carried out the surgery. (It was admitted the second report was not accurate: see [154].

On the failure to disclose issue, the tribunal said at [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.

And at [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.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 interests’ of Patient A, not least because…another clinician might not have decided to treat Patient B in the manner proposed.

On the second report issue, the tribunal said at [180]:

 (the) …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.

Findings adverse to the doctor were not made in relation to another allegation, that he had misrepresented to the parents of a child patient that an orthopaedic colleague had used a novel treatment (the injection of  platelet rich plasma) successfully, for treatment of a particular disease (Perthes disease): see [275].

At [249] the tribunal noted that 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. The tribunal was satisfied that the doctor told the patient’s parents of the novelty of the treatment. Although he objectively gave incorrect information about the colleague’s use of the treatment, what was based on a misunderstanding on the part of the doctor.

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