HEALTH PRACTITIONERS TRIBUNAL

CITATION: Medical Board of Queensland v Fitzgerald [2010] QHPT 1

PARTIES: GERALD JOSEPH FITZGERALD

Registrant

V

THE MEDICAL BOARD OF QUEENSLAND

Registrant’s Board

FILE NO/S: 3434/07

DIVISION:

PROCEEDING: Disciplinary Hearing

ORIGINATING COURT: Health Practitioners Tribunal Brisbane

DELIVERED ON: 17 September 2010

DELIVERED AT: Ipswich

HEARING DATE: 19 October 2009, 20 October 2009, 21 October 2009, 26 October 2009 and 28 October 2009

JUDGE: Judge Richards with Dr S Congdon, Dr N Williams and Mr K McDougall

ORDER: Publication of reasons

CATCHWORDS:

COUNSEL: Mr R Devlin SC appeared on behalf of the Medical Board of QueenslandMr DH Tait SC for the registrant

SOLICITORS: McInnes Wilson for the applicantFrank Athanasellis for the registrant

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[1] Dr Fitzgerald was registered as a medical practitioner on 1 February 1978. He

served as an intern at the Mater Hospital in Brisbane and was appointed to the

position of Medical Registrar at the Ipswich General Hospital in 1979. He remained

there as a casualty supervisor for almost 10 years during which time he completed a

Bachelor of Health Administration degree. He fostered a research culture at the

Ipswich General Hospital.

[2] He became a Doctor of Medicine in 1991. In 1990 he was appointed to the position

of Medical Director of the Queensland Ambulance Board until January 2003 when

he became the Chief Health Officer in Queensland Health. He is currently the

Professor of Public Health in the School of Public Health at the Queensland

University of Technology.

[3] His role as the Chief Health Officer was to represent Queensland Health and/or the

State on the committees of a range of national and state organisations (the details of

which are at paragraph 9 of Dr Fitzgerald’s affidavit). He was to provide advice to

the Minister for Health on matters of quality and standards and in that role he

developed systems and structures to support and improve quality and safety

standards. He also had a role to administer functions allocated to the office of the

Chief Health Officer and those included regulating private hospitals, responsibility

for maintenance, development of emergency health service policy and plans, the

development of Queensland Health and medical research policy and strategy,

administrative support to the Mental Health Court and strategic leadership of

Queensland Health in several miscellaneous fields. In the role of Chief Health

Officer his average working week was 60 hours per week although that was

extended when times were busy or it was necessary to travel for work purposes.

[4] Dr Fitzgerald was the Chief Officer of the Health Department during the time that

Dr Patel was employed at Bundaberg Base Hospital. He was involved in the initial

investigations into the workings of the hospital and the actions of Dr Patel. He was

also a witness at both the Morris Inquiry and the Davies Inquiry into the Bundaberg

Hospital and as a result of the findings of the Davies Inquiry he was referred to the

Medical Board of Queensland to decide whether grounds existed for disciplinary

action to be taken against him.

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[5] On 29 November 2007 a Referral Notice was filed in the Tribunal referring Dr

Fitzgerald to the Tribunal on the basis that there were grounds for disciplinary

action amounting to unsatisfactory professional conduct between the 16th day of

December 2004 and 25th March 2005. A hearing was conducted in the Tribunal in

October 2009 in closed court which included a suppression order in relation to Dr

Fitzgerald’s name on the basis that any publicity generated may adversely affect the

fair hearing of criminal proceedings against Dr Patel. At the end of that hearing the

Tribunal made an order dismissing the action and ordering costs against the Medical

Board of Queensland. At that time it was indicated that reasons would be delivered

at a later stage. As the trial of Dr Patel has reached its conclusion1 it is now

appropriate that those reasons be delivered. The Medical Board no longer has

concerns in relation to the publication of these reasons and the lifting of the

suppression order in relation to Dr Fitzgerald’s name.

Overview of Facts

[6] Dr Jayant Patel commenced employment as a doctor at the Bundaberg Base

Hospital in April 2003. Toni Hoffman was a nurse unit manager of the Intensive

Care Unit during at that time. Five weeks after he started working there, Ms

Hoffman made her first complaint about Dr Patel to the hospital’s Executive. Those

complaints continued from June 2003 until 13 January 2005, however, they were

largely dismissed by management on the basis that there was a personality clash

between Ms Hoffman and Dr Patel. Ms Hoffman persisted with her complaints and

contacted the Nurses Union to try to resolve some of the issues with which she was

concerned.

[7] Dr Fitzgerald was unaware of the problems being raised by Ms Hoffman until 17

January 2005 when he first spoke to Mr Leck, the District Manager of the

Bundaberg Hospital.

[8] On 16 December 2004 Mr Leck faxed to Rebecca McMahon, acting Manager

Investigations, Audit and Operational Review, Queensland Health, a copy of the

complaint from Ms Hoffman about Dr Patel dated 22 October 2004. He had

previously forwarded this document to Dr Keating, the Director of Medical Services

in Bundaberg and Don Mulligan. They had had a meeting together on 5 November

1 The defence for Dr Patel are currently in the process of appealing his conviction

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2004 and had made efforts to identify someone with regional experience who could

conduct an external review of the issues but those efforts were interrupted by the tilt

train disaster which was dealt with by the hospital and during which Dr Patel was

observed to have performed very well as coordinator of the surgical response to the

disaster.

[9] The next day McMahon responded to Leck advising him that because the review

involved issues of clinical practice rather than official misconduct it should be

conducted under the auspices of the Chief Health Officer. She copied Dr Fitzgerald

into that reply email. This was the first information Dr Fitzgerald had been given of

any issues at the Bundaberg Base Hospital.

[10] Leck telephoned Dr Fitzgerald’s office on 17th December 2004 but was unable to

speak to him. He was told that Dr Fitzgerald was about to depart on annual leave

but that he was aware of the situation and should be able to assist with the review.

[11] Whilst Dr Fitzgerald was away Dr John Scott was acting in Dr Fitzgerald’s position.

Leck attempted to contact Scott between 4 and 13 January 2005 but was unable to

speak to him directly although he sent an email to him on 13 January 2005.

[12] Dr Fitzgerald’s leave was interrupted by the Boxing Day tsunami in Asia. He was

recalled to duty to co-ordinate Queensland’s efforts to assist with that disaster and

resumed his holidays on 4 January until he returned to duty on 17 January 2005. On

that date he spoke to Leck by telephone and agreed to conduct the review.

[13] After their conversation, Leck sent a memorandum to Dr Fitzgerald which he

received on 20 January 2005 enclosing a brief of relevant material and he then

visited the Bundaberg Hospital on 14 February 2005 with the intention of

investigating the complaints and to perform a clinical audit. On that day he

obtained an undertaking from Dr Patel that he would not perform certain surgery at

Bundaberg Base Hospital and he began to prepare a clinical audit. He spoke to

James O’Dempsey, Executive Officer of the Health Practitioners Registration Board

on 16 February 2005 having interviewed people in Bundaberg and taken away with

him numerous patient records and indicated that it was likely that there may be

issues relating to Dr Patel which would require a referral to the Medical Board of

Queensland.

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[14] On 22 March 2005 he met with the Minister as questions had been raised in

Parliament by Rob Messenger about Dr Patel and the Bundaberg Base Hospital. He

provided a briefing note to the Minister and a copy of the draft clinical audit report.

On 24 March he briefed the Director-General and provided the clinical audit report

to the Director-General.

[15] The complaints made against Dr Fitzgerald and outlined in the referral report

ultimately at hearing came down to nine separate matters although they are mostly

inter-related. They are as follows:-

Ground 1 (paragraph 1.10) Between 16 December 2004 and 24 December 2004 the registrant failed to ask McMahon for material that was available which may have caused him to make a more immediate response to the email correspondence between McMahon and Leck referred to in paragraph 1.3 above.

Ground 2 (paragraph 1.11) Between 16 December 2004 and 24 December 2004 the registrant failed to adequately assess the serious nature of the information conveyed by Leck to McMahon by not contacting Leck and/or McMahon for details during that period.

Ground 3 (paragraph 1.12) Between 20 January 2005 and 24 March 2005 the registrant failed to order that the Bundaberg Base Hospital cease all surgery beyond the resources of a Level 1 ICU despite:being aware of the clinical complaints against Patel; andbeing aware of an undertaking given by Patel on or about 13 January 2005 as particularised at 1.13.

Ground 4 (paragraph 1.13) Between 20 January 2005 and 24 March 2005 the registrant failed to take any steps or any sufficient steps to ensure that an undertaking not to perform any further oesophagectomies given by Patel on or about 13 January 2005 to the Director of Medical Services at the time Dr Darren Keating was documented and/or monitored and/or enforced.

Ground 5 (paragraph 1.14) Between 20 January 2005 and 24 March 2005 the registrant failed as a member of the Medical Board to;

recommend the immediate suspension or the imposition of conditions of practice upon the registration of Patel as a medical practitioner; ortake any steps to have Patel suspended from practice or having conditions placed upon the registration of Patel as a medical practitioner; despite being in possession of information concerning Patel which would have justified such action.

Ground 6 (paragraph 1.15) Between 20 January 2005 and 24 March 2005 the registrant failed to refer the information provided by Leck

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concerning Patel to the Medical Board of Queensland for urgent consideration.

Ground 7 (paragraph 1.16) On or about 22 March 2005 the registrant provided misleading and/or incomplete advice to Mr Nuttall the Minister for Health concerning Patel in that he:

did not advise that Patel had not been appropriately credentialed or privileged in his employment at the Bundaberg Base Hospital; and/ordid not advise staff complaints concerning Patel had not been appropriately acted upon by the Bundaberg Base Hospital management.

Ground 8 (paragraph 1.17) On or about 24 March 2005 the registrant delivered a clinical audit report that was misleading and/or incomplete in that it;

did not report that Patel had not been appropriately credentialed or privileged in his employment at the Bundaberg Base Hospital; and/ordid not report that staff complaints concerning Patel had not been appropriately acted upon by the Bundaberg Base Hospital management.

Ground 9 was discontinued.

Ground 10 (paragraph 1.19) On or about 24 March 2005 despite holding information that showed Patel had unacceptably high complication rates for surgery and unacceptably high infection rates following surgery the registrant failed to recommend to the Director-General of Health that steps be taken to protect patient safety including but not limited to suspending Patel from service or seeking conditions upon his scope of practice pending a full patient audit.

[16] It is alleged that as a result of this conduct Dr Fitzgerald acted contrary to his duties

as a medical practitioner in his capacity as Chief Health Officer and either

singularly or cumulatively had the tendency or potential to place at risk the safety of

any patient or potential patient of Dr Patel which singularly or cumulatively

amounted to professional conduct that was of a lesser standard than that which

might reasonably be expected of Dr Fitzgerald by the public or the Dr Fitzgerald’s

professional peers.

[17] The objects of disciplinary proceedings in the Tribunal are set out in section 123 of

the Health Practitioners (Professional Standards) Act 1999 which includes

protecting the public, upholding standards of practice within the health profession

and maintaining public confidence in the health professions. It is accepted by both

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parties that the principles enunciated by the High Court in Briginshaw v Briginshaw

[1938] 60 CLR 336 in relation to the standard of proof apply in this case:2

“When the law requires the proof of any fact, the Tribunal must feel a natural persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independent of any belief in its reality.”

[18] In this case Dr Fitzgerald was not in direct or immediate contact with the public in

his capacity as a medical practitioner however it is acknowledged by the parties that

nonetheless in his capacity as Chief Health Officer who is a registered medical

practitioner he was obliged to act in a professional capacity such as to enliven the

jurisdiction of the Tribunal. In making these submissions the parties relied upon the

English case of Roylance v General Medical Council [2000] 2 AC 311, a decision

of the Privy Council delivered on 24 March 1999. There the court observed that the

appellant has duties to protect patients in his capacity as Chief Executive Officer

and the question is in what capacity he exercises that obligation.

[19] In Roylance the court noted that Roylance was3:

“…both a registered medical practitioner and chief executive of a hospital. In each capacity he had a duty to care for the safety and wellbeing of the patients. As chief executive that duty arose out of his holding of that appointment. As a registered medical practitioner he had the general obligation of care for the sick. That duty did not disappear when he took on the appointment but continued to co-exist with it. There was a sufficiently close link with the profession of medicine in the case of the appellant as chief executive of a hospital in respect of patients at the hospital.”

[20] Further 4 :

“Their Lordships put down in relation to the generality of the problem that the philosophy which seeks to divorce the administration from the medical care so as to leave the administrator free from any responsibility for deficiencies in the care of the sick cannot be sound. The care, treatment and safety of the patient must be the principle concern of everyone engaged in the hospital service. The medical staff will have the specialist expertise and the various skills. But the idea of a gulf between the medical practitioners and the administration connected by some bridge over which the appellant had passed ‘from us to them’ as appeared in the course of the argument to be a possible aspect of the appellant’s case must be totally unacceptable if the interests of the patient is to remain paramount. The enterprise must be one of cooperative endeavour.”

2 Per Dixon J at 361-3623 At paragraph 454 At paragraph 46

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“Once it is clear that a duty existed the question remains in the present case what the extent the duty was in the circumstances. In ordinary circumstances there is no doubt that a medical practitioner who holds the office of chief executive of a hospital was perfectly entitled to leave the day to day clinical decisions to the professional staff of the hospital. His duty as a medical practitioner is adequately performed by such a course. But there may occur circumstances in which more may be required of him. In such circumstances his medical skill and knowledge are undoubtedly relevant. Even if he does not have the specialised expertise of the particular area of medicine in which the problem arises, his general knowledge as a doctor will be of service, as for example, by enabling him more readily to ask the relevant kinds of question, such as in the present case when was the child last examined and what was the degree of urgency for the operation.”

[21] It is accepted that Dr Fitzgerald as a medical practitioner was compelled to comply

with the professional standards of his profession whilst performing the duties of

Chief Health Officer. There has been no litigation in Australia in relation to the

standard of care to be applied to an administrator. However, the standard of care to

be applied in Queensland in relation to a medical practitioner whether as

administrator or general practitioner is that which is outlined in the Act, namely,

care which does not constitute ‘unsatisfactory professional conduct’. In this case

unsatisfactory professional conduct has been particularised as conduct that is of a

lesser standard than that which might reasonably be expected of the registrant by the

public or the registrant’s professional peers.

Overview of expert evidence

[22] In order to assist the Tribunal in this hearing a number of professional expert

witnesses were called on behalf of the Board and Dr Fitzgerald.

[23] A report was commissioned by the Board from Prof Gaven Frost. Prof Frost is the

Dean of Medicine at the Notre Dame School of Medicine, Freemantle and holds a

Masters degree in Public Health. He was an Associate Professor and Domain Head

in Population and Public Health at Notre Dame University School of Medicine

Sydney before accepting this appointment. He has in the past held positions of

general manager of business development within Aushealth International in New

South Wales and Chief Medical Officer with MBF Australia. From 1997 to 1998

he was Chief Executive Officer at the Royal North Shore Hospital, a 750 bed

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teaching hospital at Sydney University. Dr Frost readily conceded that he was not

an expert in active health management in Queensland now or at the time of these

issues arising and therefore was, to an extent, less able to contextualize the material

with which he was provided.

[24] The defence, on behalf of Dr Fitzgerald, called a number of experts:

Dr Richard Ashby has a Bachelor of Health Administration and specialties in

Emergency Medicine and Medical Administration. He is currently the Executive

Director, Princess Alexandra Hospital. He has previously been Chief Information

Officer for Queensland Health, Executive Director Medical Services Princess

Alexandra Hospital, acting District Manager Royal Brisbane and Womens’

Hospital Health Service District, acting District Manager Princess Alexandra

Hospital Health Service District, Executive Director of Medical Services at the

Royal Brisbane and Womens’ Hospital Health Service District, and was briefly

Chief Health Officer at the Queensland Health in 1998. Dr Ashby is also the

Executive Director of Medical Services for Metro South and in that role he is the

professional head of approximately 1200 doctors. He has had personal knowledge

of Dr Fitzgerald for over 30 years although they do not socialise.

Dr Judith-Ann Graves holds a Masters of Health Administration and has a specialty

in Medical Administration. She is the Executive Director of Medical Services at the

Royal Brisbane and Womens’ Hospital. Prior to this appointment she was the

acting clinical Chief Executive Officer for 14 months and earlier still the Deputy

Executive Director of Medical Services. She has been involved in medical health

administration for more than 15 years and before being at the Royal Brisbane and

Womens’ Hospital she was at Greenslopes as Director of Medical Services at

Greenslopes Private Hospital.

Dr David John Boadle has a Masters in Health Administration and was formerly the

Chief Health Officer of Tasmania for 7 years. He ceased that position at the

beginning of 2009 to return to private practice as a medical oncologist. He is

currently the Senior Registrar of Medical Oncology at the Royal Hobart Hospital

and Deputy Chief Health Officer (Medical Strategy) Department of Health and

Human Services Tasmania. He has previously been Deputy Chief Executive

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(Clinical) at Canberra Hospital and Director of Medical services at St Vincent’s

Hospital Launceston.

Dr Andrew Johnson has a Masters of Health Administration. He is a senior

specialist in Medical Administration. He is the Executive Director of Medical

Services of the Townsville Health Services District and Chair of the Queensland

Policy and Advisory Committee on Technology and Clinical Practice. Prior to his

current position he was the Director of Medical Services for the Roman Catholic

Trust Corporation for the Diocese of Cairns.

[25] This brief overview of the qualifications of the experts show that Professor Frost

whilst, no doubt eminent in his field, does not have the same breadth of experience

in medical administration that some of the experts called on behalf of Dr Fitzgerald

possess. Professor Frost accepted that the experts called on behalf of Dr Fitzgerald

were eminent in their field.

[26] Further, whilst it is necessary to place reliance on the experts in this case, there is a

strong caution contained in the experts’ evidence and the evidence of Dr Fitzgerald

that the facts in this case may appear clearer in retrospect than they would have to a

participant or even an unbiased observer at the time. In the Tribunal’s view, despite

Professor Frost fairly making this observation at the commencement of his report,

he at times fell into the use of hindsight to place onerous responsibility on Dr

Fitzgerald in relation to his actions during 2004 and 2005.

[27] The affidavit of Dr Peter Woodruff, the Director of Vascular Surgery at the

Princess Alexandra Hospital, Brisbane illustrates the difficulties encountered by

those who were involved in initially investigating the situation in Bundaberg. He

was asked to be involved in a review of the surgical cases at Bundaberg Hospital in

April 2005 and was a member of the review team lead by Dr Martin Artuisi. He

comments in that affidavit that when he went to Bundaberg he found the situation at

Bundaberg to be extremely complex and that he believes that it was not until the

Inquiry had completed its work that the full extent of the issues could be identified.

The Allegations

[28] The allegations can be grouped into five separate categories:

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Grounds (1) and (2) relate to the email sent on 17 December 2004;

Grounds (3) and (4) relate to the conditions imposed on Dr Patel’s practice at the

Bundaberg Base Hospital between 20 January 2005 and 24 March 2005;

Grounds (5), (6) and (10) relate to a failure to suspend Patel from practice or

recommend suspension from practice to the Director-General;

Ground (7) relates to briefing the Minister for Health in relation to the Bundaberg

Base Hospital situation; and

Ground (8) relates to the clinical audit report and whether it was misleading.

The email of 17 December 2004

[29] After receiving the email of 16 December 2004 from Leck, Rebecca McMahon

replied to him the next day copying Dr Fitzgerald into the reply. The email was

headed ‘Intensive Care Unit’ and read as follows:-

“Hello Peter,

I refer to our telephone discussion yesterday and your subsequent facsimile in relation to issues with the intensive care unit at Bundaberg Hospital.

After reviewing the documents you provided, I spoke with Michael Schafer in relation to this issue.

Both myself and Michael are of the view that this matter involves issues of clinical practice and competence, rather than allegations of official misconduct. Accordingly, as discussed yesterday, it would be more appropriate for a suitably qualified team of medical practitioners to review the practices of Dr Patel and the ICU generally.

Michael has confirmed my view that Gerry Fitzgerald, Chief Health Officer, will be able to provide advices as to the manner in which this review should be conducted.

Should this review identify further evidence which raises a suspicion of official misconduct on the part of any of the officers involved please advise me and I will re-assess this matter.

If you have any further questions in relation to this matter please do not hesitate to contact me on 3234 0589.

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Many thanks.”

[30] The email did not contain any attachments. Dr Fitzgerald’s reaction to this email

was to print the document and place it in his “in” tray so that he could follow it up if

there was no contact by Leck within a reasonable time. He was of the view that the

email was forwarded to him for his information only. He received many emails of

this type during a working day. He also sent a printed copy of the email to Susan

Jenkins, the manager of the clinical audit unit within his office, in case contact was

made with the office during his absence. He gave evidence that there was nothing

on the face of the email which told him that it required his urgent attention.

[31] Professor Frost says that Dr Fitzgerald’s response to the email was deficient in that

the email clearly implied great concern on the part of a competent officer, that Dr

Fitzgerald should have demanded an urgent and unequivocal response to the

complaint and that he should have taken steps to ensure a thorough assessment of

the complaint was undertaken before he went on leave.

[32] The statement by Prof. Frost that this email expressed great concern on the part of a

competent officer is unsustainable in my view. There is no sense of urgency

conveyed in the reply. It was noted by Dr Ashby that the assessment that the

allegations did not involve official misconduct tended to rule out issues of

manslaughter and other criminal offences such as assault occasioning bodily harm

or fraud. Dr Ashby gave evidence that it was acceptable to assume that the email

was being forwarded for information only and not for action. If there was a specific

and urgent risk then, in Ashby’s opinion, Fitzgerald should have been told of that,

particularly considering Schafer and McMahon were both experienced officers. In

any event Leck did make contact with Scott between 14 and 13 January and told

him that the matter was not urgent.

[33] Dr Johnson said the nature of the reporting relations at the time would have made it

inappropriate for him to direct Dr Scott to take action over the email whilst he was

on leave and that sending a copy of it to Ms Jenkins was all the action that was

needed at that stage. Dr Boadle indicated that there was no specific content to the

email that should have aroused undue concern and that there are many emails that a

Chief Health Officer is copied into for information where there is no expectation

that action would be taken.

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[34] Dr Graves also expressed the view that the registrant was not obliged to take matters

any further than he did.

[35] In my view, Dr Fitzgerald’s actions in relation to the email which was not

considered urgent at that stage, did not sound urgent and was not marked as urgent,

could not be regarded as anything other than appropriate. It was submitted by the

Board that if the defence of Dr Fitzgerald is to be accepted by the Tribunal then it

will be sending a message that a medical practitioner in a role such a Chief Health

Officer may approach the role in a reactive or even laissez- faire manner without

any sense of urgency.

[36] In my view, that is not an accurate reflection of the defence. It cannot be expected

that the Chief Health Officer has to second guess every person in his department.

He is entitled to assume that if something is urgent or of grave concern that he

would be told so in clear terms so that appropriate action could be taken. The fact

that he was not so told together with the fact that the email was coming from an

experienced officer, entitled him to take a more reactive role than he might

otherwise have done.

[37] It is noted that the Board accepts that it is highly unlikely that any questionable

procedures took place after receipt of this email other than the oesphagectomy on 20

December 2004. Given that the email was received on a Friday and the procedure

was performed on a Monday, it is highly unlikely that that procedure would have

been prevented in any case.

[38] Having conceded that Dr Fitzgerald’s alleged failures to act did not contribute

directly to patient death or injury the Board claims that Dr Fitzgerald’s alleged

failures to act in a timely and effective way, failed to protect patients at Bundaberg

Hospital in a general sense. There is no evidence that there was any risk in a

general sense. Dr Patel had given Keating an undertaking not to perform complex

surgery on 13 January 2005. Dr Fitzgerald’s professional peers, Doctors Ashby,

Johnson, Graves and Boadle say that his conduct did not fall below the standard

expected of his professional peers. Prof Frost’s evidence puts a gloss on the email

that did not exist in the Tribunal’s opinion. There is no evidence that there was a

failure to properly assess or act upon the email of 17 December 2004.

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Conditions imposed on Patel’s practice

[39] Dr Fitzgerald had been due to go on leave on 24 December 2004. He was recalled

to duty on 26 December 2004 when news of the Boxing Day tsunami was received

and he was asked to co-ordinate the Queensland response to the disaster. He finally

went on leave on 4 January 2005 and returned on 17 January 2005 whereupon he

spoke to District Manager Leck. During that conversation Leck indicated that he

had received complaints about Patel but he did not know if there was any substance

to them, that Dr Keating had advised him that Dr Patel’s surgical competence was

reasonable, that they had no clear evidence to suggest that his surgical practises

were inappropriate, that he believed that Patel was doing a lot of good for the

patients of Bundaberg and that Dr Keating believed that the matter was as a result of

a personality conflict with certain members of the nursing staff.

[40] On 20 January 2005 he received from Leck a memorandum attaching:

a 3 page letter from Hoffman dated 22 October 2004;

notes of meetings held in October and early November 2004 between staff doctors,

nursing staff, Leck and Keating;

an adverse event report form in respect of patient Bramich;

the email between McMahon and Leck dated 17 December 2004; and

a bundle of signed statements from a large number of nursing staff at Bundaberg

together with a spreadsheet entitled ‘Peritineal Dialysis Catheter Placements 2003’

which indicate 6 adverse outcomes for catheter placements performed by Dr Patel.

[41] The evidence before the Tribunal was that at the time there was confusion about

whether the Bundaberg Base Hospital had a Level 1 ICU or a Level 2 ICU.

Performance of particular procedures in any event is determined by a combination

of the resources available at the facility, the nature of the procedure and the risk

profile of the patient. A pre-emptory decision to cease all surgery beyond that of a

Level 1 ICU may have caused confusion, possibly endangered patient safety, and

was not justifiable on the available information.

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[42] Dr Fitzgerald said that he found on examining the material that the best thing to do

was to visit Bundaberg and to find out exactly what was wrong, particularly because

there was an unclear picture in relation to the problems in the hospital at that stage.

Dr Fitzgerald noted in his evidence to the Tribunal:5

“Well I think the things that sort of struck me about it at various stages in it even from the receipt of the documentation, you know, having been presented confusing the picture was that there were clearly some issues of concern being raised by the staff in the ICU about whether they had the capacity to support the care or post-operative care that patients who had major procedures requiring ongoing ventilation and that had been the source of conflict in the workplace, etc. Having been up to Bundaberg and having seen the capacity of the Bundaberg Hospital, and particularly the staff of the Bundaberg Hospital, I clearly reached the view that I agreed with her and said so to the Hospital executive. I was advised at that stage that commitments or undertakings or whatever had already been put in place, they had been kept, and were reinforced to me, not only by the Hospital executive, but in my interview, brief interview with Dr Patel he also indicated – I think he used words to the effect from memory that if they don’t want me to do them I won’t do them. So, it was clear that an undertaking or an agreement had been reached with the Hospital executive about that. So, I felt at that stage that the key issue of concern was regarding the conduct of complicated procedures outside the scope of the Hospital had been addressed. There were many other issues and they were much more complicated and so I felt those matters obviously needed to be further investigated and hence the referral to the medical board.”

[43] He went on to say that it was a matter of arriving at the least restrictive or least

damaging action whilst proceeding with other investigations bearing in mind that Dr

Patel was one of the very few doctors at the Bundaberg Hospital.

[44] Having received the material and being presented with a confusing picture, Dr

Fitzgerald then arranged as quickly as possible to go to Bundaberg. He arrived in

Bundaberg on 14 February 2005 and by that stage had decided to proceed with a

clinical audit. On 17 February 2005 Dr Fitzgerald and Ms Jenkins spoke to 25

people concerned within the Bundaberg Hospital including Nurse Hoffman, Patel,

Keating and Leck.

[45] Some doctors were supportive of Dr Patel. The anaesthetists reported their concerns

about operations exceeding the capability of Bundaberg Hospital but recorded

Patel’s general surgical skills as reasonable. Keating described Patel as a significant

5 Transcript 2-11

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asset having reduced waiting lists and received recognition for his outstanding

contribution to the tilt train aftermath, but there were personality conflicts. Keating

deliberately withheld information from Dr Fitzgerald during his interview,

particularly in relation to complaints by patients. On the other hand, Dr Miach

provided a summary of 6 peritoneal catheter placements by Dr Patel which had

suffered complications. He also presented a letter from Dr Jenkins about a failure to

remove sutures from an amputated limb.

[46] During interviews an issue was raised in relation to the Hospital’s capacity to

manage complex surgical issues and whether Dr Patel had the skills to perform the

operations. Patel said he was a very experienced surgeon but he gave an

undertaking that he would refer complex surgery patients to tertiary facilities in

Brisbane. Dr Fitzgerald was told by Patel that he had been keeping a similar

undertaking since 13 January 2005.

[47] Whilst at the Hospital Dr Fitzgerald advised Leck and Keating of Patel’s

undertaking not to perform complex procedures at Bundaberg and to refer urgent

complex patients to tertiary facilities. Keating assured him that such an undertaking

was already being kept.

[48] On the way home on 16 February, Dr Fitzgerald spoke to Mr Dempsey indicating

that there were concerns about Patel and the matter may have to be referred to the

Medical Board. It was decided between the two of them that as his registration was

about to expire, any further registration should be deferred until the audit report was

completed. Dr Fitzgerald indicated that once he had collected and considered all the

information he would probably make a formal complaint to the Medical Board.

[49] The Board’s case is that Dr Fitzgerald should have taken more definitive action

against Patel from an early stage and that any action should have been carefully

documented. In presenting it’s case the Board relies on comments made by the

registrant in both the Morris and Davies Inquiries.

[50] When asked about his decision making process in relation to Patel’s continuing

practice in the Morris Inquiry he stated6:

“Prior to January I had no real information of what was going on at all….and in January…I suppose I didn’t sort of consider that we

6 Morris Inquiry transcript 3210

17

needed to do anything precipitously. I mean, I think the point is valid in retrospect it may well have been that we should have done something more urgently. I know when I visited Bundaberg and had discussions and got a clearer picture of what was going on, including some idea of the number of these cases and when they were being dealt with, I did obtain a commitment before leaving that those operations would cease in Bundaberg both from Dr Patel and from the Medical Superintendent”

[51] He also acknowledged that Nurse Hoffman had suggested there was a need to stand

Patel down pending investigation. Of course, the fact that he chose a different

course to that suggested by Nurse Hoffman does not necessarily mean that his

conduct amounts to unsatisfactory professional conduct. Dr Fitzgerald

acknowledged that he considered Nurse Hoffman’s option7:

“ It occurred to me as an option….But it was – I think we need to take all of the information in context and collectively and I believe that – believed at that stage on the balance of the information provided to us, that provided that the issues regarding the major procedures had been dealt with then all the information that I was provided by most staff at Bundaberg was that his general surgical skills were appropriate and that he could continue to operate in general terms without undertaking major procedures that were beyond the scope of the hospital”

[52] During the Davies Inquiry Dr Fitzgerald, in an atmosphere that was acknowledged

in this hearing to be more hostile, was questioned about the failure to put the

undertaking in writing:

“Q – Do you think it should have been in retrospect?A – Probably. In retrospect I think the Medical Superintendent should have made it clear with the doctor concerned about what should or shouldn’t be done.Q – I suggest you should have made it clear to Doctor Patel that you, as the person eliciting the undertaking, require a very strict and exemplified adherence to what was required in that respect?A- YesQ – But it didn’t happen?A – It didn’t happen, no.Q – The fact that it didn’t happen, I suggest, exemplifies a very poor approach to your undertaking of this audit. I’m making a suggestion to you, sir, for your comment?A – Well, I don’t believe it was a poor approach. I believe, obviously in retrospect that there are things we could have done better.”

[53] The Board submits that these answers reflect an admission of error on the part of Dr

Fitzgerald. Even if that were so, the Tribunal must be satisfied that the conduct

7 At T 2-32 L20

18

actually amounted to conduct deserving of disciplinary sanction. I accept Dr

Fitzgerald’s comments that his answers in those enquiries were simply an

acknowledgement that as the complexities of the issues in Bundaberg were

unravelled that there could have been better systems in place which may have

brought the matter to a head at an earlier stage and that perhaps on reflection he

could have acted differently.

[54] When asked at this hearing about his comments to Mr Morris QC he said:8

I don’t think it’s an expression of error of judgement. I think it’s an expression of an ability and willingness to be reflective and to think about whether it’s possible. I mean the words, as they stand, are laden with maybe and should and possible and phrases which say that it needs to be examined or thought about or reflected upon…..But I think that’s the epitome of professional conduct”

[55] In relation to his comments at the Davies inquiry he said:9

“ ..as I said before I believe there is always a time for reflection and to seek ways of doing things further. I would – whatever I do, whether it is writing documents or whatever, I’d always be interested in exploring and reflecting on that, to look at ways we could do better in the future. And I accept that that was done in this circumstance. Now whether – however I think it is a far cry from that to say that what was done was incorrect or that it necessarily was unprofessional.”

[56] Professor Frost seems to suggest that Dr Fitzgerald should have taken more

determined action and that he should have been more proactive. It is difficult to

know how he could have acted more quickly given the differing accounts of Dr

Patel’s actions and skills, his need to accord natural justice to Dr Patel, and his

mindfulness that the patients in Bundaberg Hospital needed continuing medical

care, provided that medical care could be administered safely. As a result of the

visit to Bundaberg Dr Fitzgerald went away with undertakings concerning major

procedures and transfer of patients to tertiary hospitals. Those undertakings

minimised the risk to patients identified by the material, including the Hoffman

letter, and consequently no patient suffered any relevant adverse outcomes after this

date.

[57] Dr Fitzgerald acknowledges that the undertaking given by Patel could have been set

out in writing and that could have allowed ease of action if the undertaking was

8 T 2-30 L559 T 2-36 L55

19

breached, however, as Dr Fitzgerald’s counsel submitted, just because something

different could have been done, does not mean that Dr Fitzgerald fell below an

acceptable standard.

[58] The experts called on behalf of Dr Fitzgerald indicate that his actions were

appropriate. It was reasonable, Dr Johnson said, to resolve the conflicting

information with a personal attendance at Bundaberg and there was, of course, the

need to balance natural justice with preservation of public safety. Further, Dr

Johnson said, that even if Dr Fitzgerald had been able to immediately form a

conclusive view it would have been more appropriate for the district manager to

have restricted practice. In Dr Johnson’s opinion a change in service levels at

Bundaberg would have been precipitous at the time and it would have led to

significant adverse outcomes.

[59] Dr Ashby also agreed that Dr Fitzgerald had acted correctly in deciding to go to

Bundaberg personally and interview the relevant parties to obtain reliable

information. Dr Ashby also noted that the delay in commencing the investigation

had to be considered against the following factors:

that Dr Fitzgerald had meagre infrastructure to undertake a task such as the one

before him;

he was still in the throes of dealing with the Asian tsunami;

there were issues concerning Hervey Bay and Maryborough as well as Bundaberg

and;

he had to coordinate interviews and gather patient files, data and other information.

[60] Dr Ashby said that while there were some serious matters raised in the bundle of

documents received on 20 January 2005, a 25 day delay in investigating the matter

would be viewed as expeditious in other jurisdictions and noted that during the

investigation Dr Fitzgerald was able to create an environment for stakeholders to

express their views. He had obtained key undertakings from Dr Patel, he had

obtained an undertaking from Keating that he would personally supervise and

monitor the arrangements with Dr Patel, he continued with the clinical audit and

review process when he got back to Brisbane, he discussed his concerns about Dr

20

Patel with the executive officer of the Medical Board and reached an understanding

with him in relation to re-registration.

[61] Dr Graves indicated there was no sense of urgency in Leck’s letter of 20 January

2005 and that it was reasonable to conduct a clinical audit in the circumstances. Dr

Boadle indicated that the information of 20 January 2005 did not allow Dr

Fitzgerald to reach a definitive conclusion and there had to be a more detailed

review. None of Dr Fitzgerald’s experts saw a problem with the fact that Dr Patel’s

undertakings were not in writing, and Dr Boadle indicated that ceasing all surgery

beyond the levels of Level 1 ICU on the information provided would have been an

excessive response.

[62] Dr Fitzgerald indicated that he could not have done more in terms of curtailment of

surgeries until he had digested the complaints and spoken to people at the Hospital,

particularly considering that the executive team at Bundaberg had themselves

looked into the matter and decided not to take any steps in that regard. He said

there was some confusion as to the level of Bundaberg Hospital’s ICU and that he

needed to establish that upon attendance at the Hospital. He said could not have

come to a quicker decision simply on the material he was given. Once at

Bundaberg he formed the view the hospital could not support a Level 2

categorisation.

[63] In relation to the written undertakings, he said he did not consider it necessary to

obtain undertakings in writing because he accepted the professionalism of Leck and

Keating, and it was the responsibility of Leck and Keating to monitor and enforce

the undertaking.

[64] Professor Frost in reaching his opinion did not stop to consider adequately in my

view the information in the possession of Dr Fitzgerald at any of the critical dates

nor to inform himself of the systems and staffing levels operating in Queensland at

the time. The Tribunal is not convinced that there was any necessity for the

undertakings to be in writing. Dr Patel did comply with the undertakings, the

evidence of the Queensland based experts is that the undertakings were clear

enough for a practitioner to understand exactly what was required, and Keating and

Leck knew the scope of the undertaking and they were the ones in a position to

monitor the compliance with the undertaking. If the undertaking was breached then

21

evidence could easily have been gathered from Leck and Keating about the breach.

In my view there is no substance in these allegations.

Failing to suspend or recommend suspension of Patel’s registration.

[65] Dr Fitzgerald indicated that the visit to Bundaberg Hospital did not leave him in a

situation where there were clear enough grounds to warrant suspension of Dr Patel.

The undertakings given to Dr Fitzgerald in his view were sufficient to restrict Dr

Patel’s practice in the areas of concern and he was able to minimise risk to patients’

safety whilst maintaining a surgical service for people at Bundaberg. Dr Keating

had told him when he came to Bundaberg that there were no patient complaints in

relation to Dr Patel. He later found out that this was untrue.

[66] Dr Fitzgerald did not fail to consider suspension; he simply decided that it was not

appropriate. The reasonableness of that decision is supported to a degree by Mr

O’Dempsey. When Dr Fitzgerald spoke to Dempsey, he had already heard about Dr

Patel after a meeting with the Queensland Nurses’ Union. Dr Fitzgerald advised

O’Dempsey that Dr Patel had conducted procedures at Bundaberg Hospital which

appeared to be beyond the capability of the Hospital, and advised him of the

undertaking not to perform complex procedures and refer cases to tertiary hospitals.

Whilst O’Dempsey did not have all the details in the possession of Dr Fitzgerald

and Ms Jenkins, he nonetheless did not suggest any immediate suspension or

imposition of conditions of practice on Dr Patel, in fact, he discussed and agreed

with Dr Fitzgerald the proposed path concerning Dr Patel, namely, to hold re-

registration until the audit process was carried through.

[67] In relation to the question of suspension, Professor Frost was particularly vague.

His evidence was essentially that at some stage, he would have taken a strong

decision to suspend Dr Patel on full pay when the balance for public safety tipped

against Dr Patel. When he was asked when that would have been he said he could

not identify a date because he was not familiar enough with dates or the

circumstances, but if he were convinced of the view, then he would have suspended

him. He concluded by saying that he was not certain that he would have ever

become convinced of that need, but that he may have. He acknowledged that before

he could take the step of suspending someone he would have to be satisfied about

the accuracy of facts to a high degree, and he would have to visit the hospital and

22

investigate those allegations. He agreed that this was not a decision that should be

taken lightly, particularly in a regional centre where reducing the capacity for

surgical service is not a matter to be taken lightly.

[68] The effect of his evidence is that he would have considered suspending Dr Patel but

cannot say that he would have actually suspended him. Dr Fitzgerald’s evidence is

that he did consider this option but rejected it for the reasons already stated.

[69] By 24 March 2005 Dr Fitzgerald advised the Board that the Board should make

enquiries into Dr Patel because the evidence he had collected regarding

oesophagectomy procedures indicated that their standard was relatively poor. There

was a higher rate of complications than the peer group average on the face of it, and

his judgment may have fallen below the standard expected.

[70] Dr Ashby pointed out that in considering the action to be taken against Dr Patel, it

was important to consider the importance of keeping a surgeon at the Bundaberg

Hospital where otherwise there would have been increasing risk to patients

generally and specific risk to major trauma patients due to doctor fatigue if Dr Patel

had been taken out. In his view the undertakings were sufficient to suspend Dr

Patel immediately if they were breached. Dr Johnson thought the level of restriction

was appropriate and that referral to the Medical Board would not be taken until

there was a proper investigation. As with Dr Ashby, Dr Graves took the view that

the voluntary undertaking was sufficient.

[71] Dr Boadle thought that he would have given thought to standing the surgeon aside

from his duties as chief of surgery but would have spoken to the line managers

about that as it was really their role to decide if it was appropriate to suspend a

surgeon if they had enough evidence to do so. He said that once the decision was

made to conduct a clinical audit, however, it would have been logically inconsistent

to recommend suspension. Dr Boadle considered Dr Fitzgerald’s actions as

measured, carefully considered and consistent with those of a mature and

experienced medical practitioner functioning in a high level strategic position.

[72] In relation to the failure to recommend suspension to the Director-General, the

matter was referred to the Board on 24 March 2005. Professor Frost thought that Dr

Fitzgerald should have taken more determined action to suspend Dr Patel.

23

However, once the matter was referred to the Board, in my view it became a matter

for the Board to decide. In relation to Professor Frost’s opinion that there was a

conflict between Dr Fitzgerald’s need to continue the provision of surgical services

and his understanding the seriousness of Leck’s complaint. Dr Fitzgerald said:-

“If services are removed without a proper balancing of all proper

consideration then patients are placed directly at risk by being

deprived of access to health services which may be necessary to

ensure their health. In my submission continuation of services is an

appropriate matter for medical managers to take into account in

exercising their judgment and balancing clinical needs and risks.”

Dr Frost has the advantage of retrospect. The extent of issues and

the quality of services are now clear after three further years of

detailed consideration, the detailed audit by Dr Woodruff, the

investigations of two commissions of enquiry … and countless hours

of detailed analysis.”

There was no need to suspend Dr Patel at that stage and the expert evidence other

than Professor Frost supports that proposition.

[73] The Board pointed out that Mr O’Dempsey provided the following evidence to the

first inquiry in his witness statement in relation to the Board’s power to suspend on

an interim basis:

“In order to invoke the powers of s 59 the Board must decide upon

action which is the least onerous upon the registrant in order to

protect vulnerable persons. The Health Practitioners’ Tribunal in

Furling v Medical Board of Queensland [2002] QHPT 004

established the clear authority that the threshold was a high one for

applying s 59 HPPS Act conditions or suspension in terms of

evidence of the immediacy of the threat and determination of least

onerous action to achieve the protection of vulnerable persons.”

24

[74] In this case, the undertakings that had already been given would seem to have been

the appropriate ones whilst pending investigation. They were as required in

Furling’s case the least onerous action to achieve the protection of vulnerable

persons. There is no evidence of inappropriate conduct in the failure to suspend.

The advice given to the Minister of Health

[75] Dr Fitzgerald was required to give the minister an urgent briefing note in relation to

the Bundaberg Hospital in response to questions raised in parliament on 22 March

2005. At that stage the clinical audit was not finalised although there had been a

draft report prepared. Dr Fitzgerald was given an hour to prepare the brief and it

was designed to be strategic and limited to 2 pages. The draft clinical audit was

provided to the Minister’s office on the same day, and the briefing was based on Dr

Fitzgerald’s findings and judgment at the time.

[76] The criticism is that Dr Fitzgerald did not advise that Dr Patel had not been

appropriately credentialed or privileged in his employment at Bundaberg Base

Hospital and did not advise that staff complaints concerning Dr Patel had not been

appropriately acted upon by the Bundaberg Base Hospital Management.

[77] The report was by necessity brief. It referred to conflict within the workplace

requiring attention by administration and suggested strategies needed to be put in

place to resolve that conflict. It referred to a medical practitioner acting beyond the

capacity of the Hospital and possibly beyond his personal capacity; that there may

be grounds for disciplinary action; that there were matters which needed addressing

at the Hospital and that recommendations would be forthcoming. The draft clinical

audit report was attached which indicated that credentialing had not been

completed.

[78] It is true to say that the report was not as full as it could have been had it been a 10

or 15 page report, however, it did seem to cover the main concerns of Dr Fitzgerald

at the time. The required brevity of the note meant that the document was bound to

be sparse in some detail. It does not follow that it was misleading.

[79] Whilst Professor Frost indicated that the report should have been fuller, it is not

clear in what regard it should have been fuller. His evidence comes down to an

impression that the picture painted to the Minister was rosier that that given to the

25

Director-General two days later. Professor Frost seemed to accept that the two

reports were provided for different purposes and with different focuses.

[80] Dr Ashby expressed the opinion that the advice was not misleading, particularly as

the clinical audit report which was not completed was attached. Minister Nuttall at

no time expressed a concern that he had been misled and in fact, he delegated

responsibility to establish and monitor the first of three inquiries to Dr Fitzgerald.

Dr Johnson pointed out that the ministerial briefing was meant to be succinct and

devoid of speculation. It was important that Dr Fitzgerald therefore not speculate

on matters that had not been established and the clinical audit report was not

finalised. He noted that in order to complete a comprehensive and conclusive

review Professor Woodruff later had to read through 47,500 pages of clinical files; a

task which took 6 weeks full-time.

[81] Dr Boadle concluded that the response to parliamentary questions presented a

logical and appropriate summary of the situation as assessed by Dr Fitzgerald at the

time. He pointed out that Dr Fitzgerald had provided the Minister with a draft of

the clinical audit report as an attachment to the briefing so there was no obvious

intention to withhold information from the Minister. Dr Fitzgerald points out that

he was required to give an overview of the issues and provide the Minister with

suggested responses to be used in Parliament. The document was meant to be brief

and he was not able to access all the benchmarking data at that stage.

[82] In relation to the clinical privileging process, it was pointed out at that stage that it

was relatively new and other Hospitals across the state had not yet been formally

credentialed. In fact, Dr Ashby gave evidence that, at the time, there would have

been hundreds of doctors that were not formally credentialed across the state and it

was not remarkable at all that this had not been done, particularly in Dr Patel’s case

as he was a foreign doctor and attempts had been made to have him credentialed but

there had been difficulties finding a doctor able to carry out the assessment.

[83] Whilst different people may have worded the document differently, there is no

evidence that the briefing note was misleading or incomplete and therefore there is

no substance in these allegations.

Was the clinical audit report misleading?

26

[84] It is alleged that the clinical audit report was misleading because it did not talk

about Dr Patel not being appropriately credentialed or privileged, and did not

comment on complaints not being adequately acted upon by the management at the

Hospital. Dr Fitzgerald says that the report was designed to get to analyse and

resolve disputed facts and Professor Frost agrees that this was a reasonable way to

approach the task. It was submitted by Dr Fitzgerald that the report had to be read

in conjunction with the referral notice to the Medical Board and memorandum to

the Director – General, Dr Buckland.

[85] It is correct to suggest that the clinical audit report did not mention that Dr Patel had

not been appropriately credentialed to the Bundaberg Hospital. Dr Patel was not the

only doctor at Bundaberg Hospital in that situation and so the problem was larger

than one person. The memorandum to Dr Buckland does mention Dr Patel’s

credentialing as well as the fact that the executive management at Bundaberg Base

Hospital failed to respond to staff and concerns in the timely and effective manner.

Dr Fitzgerald says that by adopting the report and covering memorandum to Dr

Buckland he was attempting to focus the report on clinical systems rather than

management systems. A clinical audit report he said generally attempts to avoid

adverse comments about individuals. He said there was no intention on his part to

give a false picture of Dr Patel’s clinical competence. The clinical audit report was

prepared in accordance with the guidelines of clinical audit of Queensland Health

which stresses an emphasis on systems and structures and maintenance of

confidentiality. Dr Fitzgerald pointed out that whilst the report did not name Dr

Patel, it did refer to the director of surgery and identified an extensive range of

system failures.

[86] It is fair to say that Dr Fitzgerald was cautious in his statements in relation to the

investigation of this matter and particularly in relation to the interpretation of data.

The need for caution in that regard has been universally endorsed by the experts and

a case in point is the data in relation to the bile duct surgery. Dr Fitzgerald was

cross-examined at length in the Davies inquiry in relation to Dr Patel’s complication

rate for bile duct surgery being 25 times the average complication rate. At the time

Dr Fitzgerald pointed out that there were a small number of cases involved and it

was difficult to draw statistical relevance from such small numbers. The clinical

audit report specifically noted that small numbers should be interpreted with

27

caution. In fact, after a detailed review was conducted by Dr Woodruff, of the 10

bile duct injury cases noted as injuries at the Bundaberg Hospital, there was only 1

case where the injury was caused by Dr Patel and he quickly noted the injury and

repaired it. So it was with some justification that the registrant submitted that it was

widely accepted in Queensland Health that the data on complication rates could not

be relied on as such, but simply pointed to a need to undertake a detailed review of

matters.

[87] Dr Ashby said that the clinical audit report was appropriate and it was clear on

reading the report that the issue of competency of Dr Patel had not been resolved.

Dr Ashby said that he did not find the clinical audit report to be unacceptable in

format or content. There was enough information to ensure an appropriate action

plan was formulated. It was appropriate to refer Dr Patel to the Medical Board for

further investigation and assessment following the report, and to advise the

Director-General of Queensland Health in relation to clinical governance areas.

[88] Dr Johnson pointed out that clinical audit reports were often very carefully worded

documents aimed at providing sufficient information to convey not only statistical

outcomes of service but to put those in context in order to understand the systems

and structural issues that outcomes may reflect. There is no gold standard for

clinical audits. They can be critiqued and improved upon but there was nothing

wrong with the report.

[89] Dr Greaves considered it was reasonable to consider the clinical audit report

together with covering letter for the Director-General and referral to the Medical

Board, and Dr Boadle also considered the report to be satisfactory. It was clear and

appropriate and it was systems and issues focused rather than instances and

individuals.

[90] Professor Frost’s criticism seems to be that the clinical audit report did not contain

matters that were in the Director-General’s memorandum or the letter to the

Medical Board. His position came down to the somewhat ridiculous proposition

that even if the memorandum was attached to the clinical audit report then the report

was still misleading. His position was outlined in his evidence10:

10 T 1- 65 L25

28

“ and my criticism of the audit is largely that I had some reservations about the interpretation of the data the fact that the recommendations contained within the audit are generic, appropriate but generic, there is no mention of Dr Patel, although I think it does mention Director of Surgery at one stage, there’s no mention of Dr Patel, and that may be appropriate, but that what I take to be the really significant matters identified in the audit are covered in the covering email to the Director – General and not within the audit.”

[91] The Board also relies on Dr Fitzgerald’s answers to the inquiries for example the

suggestion the comment during cross-examination in the second inquiry that a

“skewed picture” was created in relation to the performance of executive

management when dealing with complaints:

“ Sir, I respect that that’s the outcome. It was not the intent at the time. That’s all I can say. I mean, would we write this differently now? Of course we would write it differently now. But I can’t – I mean, that’s what we wrote at the time. It was not intended to produce a skewed picture. It could have been done better, I accept that.”

[92] This comment is once again illustrative of Dr Fitzgerald’s willingness to reassess

his actions in light of the information uncovered by the inquiry but in my view does

not amount to an admission of unsatisfactory professional conduct.

[93] The criticism of the audit report in my view is nothing more than a criticism of style

over substance. Professor Frost would have added the detail of individual

shortcomings and Dr Fitzgerald chose to leave those matters for the memorandum

attached to the report, preferring to leave the report in more general terms. As Dr

Johnson pointed out there is no gold standard of clinical audit reports and styles

may differ. There is no basis for suggesting that there was selective reporting to

avoid a controversy relating to an identified risk to public health and safety. Overall

the report was critical of the systems operating in the hospital and items to be

addressed were canvassed.

Revisiting the Board’s case

29

[94] The Board’s case hinges on two main factors; the expert evidence of Professor Frost

and the evidence given by the registrant under cross-examination to the two

commissions of enquiries.

[95] Dr Frost based his opinion concerning Dr Fitzgerald’s conduct on what he

understands to be the standard in Roylance. He says Roylance requires a counsel of

excellence to be applied namely “in the ideal world every medical practitioner

would provide absolute patient care on every occasion to every patient”11. He

expanded on this in his evidence:12

“That would be the standard of Roylance as I interpret it. The reality is there will be mitigating circumstances of which the tribunal and others would be aware, that need to be taken into consideration when that standard is apparently not met. So, what I’m saying is that my limited understanding of Roylance and the basis of my opinion is that the ideal standard of a medical practitioner operating in the role of chief health officer or director-general is a high standard. Q - Flawless? A - Probably.”

[96] As already pointed out that is not the standard that should be applied in this case and

in fact one cannot expect someone operating in the real world to constantly achieve

flawless outcomes. That is not the nature of humanity. Professor Frost

acknowledges that Doctors Ashby, Graves, Boadle and Johnson were practitioners

of high standing and Professor Frost acknowledges that the Queensland based

experts were better placed to discuss the matter in the context of Queensland Health

at the time.

[97] In relation to the experts who gave evidence to the Tribunal, the evidence of

Professor Frost was less than impressive. Where his evidence differed from the

evidence of the experts called on behalf of Dr Fitzgerald, I accept the evidence of

the latter.

[98] In relation to Dr Fitzgerald’s evidence at the Inquiries, they amount to no more than

concessions by him that in retrospect he may have acted differently had he had a

clearer picture at the time of the problems at the Bundaberg Hospital. The fact that

he may have acted differently with hindsight or even that he may now act

differently given the same situation, does not mean that he is guilty of unsatisfactory

11 T 1-57 L1012 T1-57 L15

30

professional conduct. It was conceded by Professor Frost that surgeons may act

differently but still act in a satisfactory and competent manner and such is the case

here. It is abundantly clear when one looks at the expert evidence provided by Dr

Fitzgerald’s witnesses, none of whom are personal friends of Dr Fitzgerald, that the

actions of Dr Fitzgerald did not fall below the standard expected of his peers. In

fact his peers have gone to great lengths to support his actions throughout this case

as attested to by the enormous amount of personal references tendered to the

Tribunal.

[99] The other question, of course, is whether his actions have fallen below the standard

reasonably expected of the public. In my view there is no evidence to suggest so in

this case. Dr Fitzgerald acted as swiftly as he could in the circumstances. He acted

fairly to all parties and ensured that everyone was heard; he put undertakings in

place to ensure that Dr Patel’s surgery was limited to protect the public whilst

ensuring the continuation of clinical care at the hospital and once all the information

was gathered and examined he referred Dr Patel to the Medical Board and

recommended changes to the systems at the hospital to avoid future problems of a

similar nature.

[100] To illustrate the attitude of the public to Dr Fitzgerald’s actions two affidavits were

filed on his behalf. The first is from Beryl Crosby who was the patient support

group leader in relation to the patients and families at the Bundaberg Hospital. In

her affidavit she says:13

“48. I am not an expert but I can speak on behalf of the patient support group. I have been made aware of the allegations against Dr Fitzgerald. On behalf of the group that I represent that are most affected by Dr Patel I can say that we consider it unfair that these allegations are bought against Dr Fitzgerald, one person who went out of his way to help the patients and their families. It took the Commissioner and all of its resources to get to the bottom of what had gone on.

49. I did not know the extent of the cover ups that had gone on in that hospital, particularly by the executive team, until I spoke to the hundreds of patients that came forward in April 2004 and sat through the Commission hearings.”

13 Affidavit of Beryl Crosby paragraph 48 and 49

31

[101] Toni Hoffman, the Nurse Unit Manager at Bundaberg who was instrumental in

bringing these matters to light has also provided an affidavit stating that when she

first spoke to Dr Fitzgerald on 14 February 2005 she became aware that the

executive had advised him that the over-riding issue was a personality clash

between herself and Dr Patel. She says it was not until after the Commission of

Inquiry that she realised how much information had been withheld from Dr

Fitzgerald including the fact that he had been told by Dr Keating that there had been

no patient or doctor complaints against Dr Patel. She states:14

“16. Dr Fitzgerald asked for all relevant documents including patient charts. I provided him with documents and I understand from conversations that I had with other nurses at the time that others too provided him with similar material. Amongst other things I have told Dr Fitzgerald that I believe the charts did not reflect the reality of the situation that existed, that is Dr Patel’s charts may not be accurate.

17. Given what I now know from the Commission of Enquiry about the conflicting information that the executive had provided to Dr Fitzgerald, I can understand how it may have seemed to Dr Fitzgerald indeed to any sane person, that they should proceed with caution to make sure my complaints were not fanciful.”

[102] She further states that she was dealt with compassionately by Dr Fitzgerald and that

he was one of the few people who had taken her concerns seriously. She concludes

by saying:15

“21. Many people involved in the Dr Patel story made mistakes with the Dr Patel situation, myself included. Some of us made less mistakes than others and should be held accountable but Dr Fitzgerald is not one of them. Information that may have helped him come to a different conclusion was deliberately withheld from him. In spite of this he tried to be impartial and to provide Dr Patel with natural justice for which he should be applauded. He offered the nursing staff from the ICU at BBH support when no-one else did, not even our director of nursing and for this I thank him.

22. I also wish to add that after the issue became public and Dr Patel left Australia Dr Fitzgerald came into Bundaberg Hospital and worked closely with all of us to try and help care for patients who had been adversely affected and to rebuild the hospital which has

14 Affidavit of Toni Hoffman paragraph 16 and 1715 Affidavit of Toni Hoffman paragraph 21 and 22

32

suffered significantly in March and April 2005. He also helped restore staff morale and community confidence in the hospital.”

[103] These two people were at the core of the investigation in the Bundaberg Hospital.

They know, perhaps better than most, what happened in Bundaberg and they do not

feel that Dr Fitzgerald’s actions fell below that expected of a competent Chief

Health Officer. It is the view of the Tribunal that there is no case for Dr Fitzgerald

to answer in relation to these allegations.

[104] It should be noted that the case at the hearing was conducted fairly by the Board.

Case summaries outlined both sides of the argument and appropriate concessions

were made. However at the end of the hearing it was revealed on behalf of Dr

Fitzgerald that submissions were forwarded to the board in July 2008 together with

the expert reports of the Queensland doctors asking that the referral to the Tribunal

be withdrawn. The Board considered that there had been a public inquiry and that if

Dr Fitzgerald had not made concessions about his own stewardship then the Board

would not necessarily have referred the matter to the Tribunal, that the matter was in

the public interest and that it was their public duty to bring the matter before the

Tribunal. One cannot criticise the Board for having initiated the action given the

adverse findings of the inquiry, however, by July last year the Board had obtained

the opinion from Professor Frost in Western Australia and Dr Fitzgerald had

garnered opinions from three very experienced medical administrators who were

well respected by their peers and by the medical expert for the Board. They were

vastly more experienced than the medical expert for the Board and the medical

expert for the Board was applying an erroneous standard to the conduct of Dr

Fitzgerald in any case. In those circumstances it was inappropriate that the Board

proceed further with this hearing without giving due consideration to the cost and

stress that was being incurred by Dr Fitzgerald on a matter that was bound to fail at

hearing. The suppression order in relation to the hearing of this matter and the

publication of Dr Fitzgerald’s name is lifted.

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