Category: Court Decisions

Nouri v Australian Capital Territory [2020] ACTCA 1 (13 February 2020) – Wrongful Birth

In this wrongful birth case, the Australian Capital Territory Court of Appeal decided in favour of the hospital. Although it was found that the Canberra Hospital had breached its duty of care to the child’s parents, the parents failed to establish causation.  

Ms Nouri and Mr Shaor (the appellants) sued the Canberra Hospital for losses associated with their baby’s severe birth defects. The child, Saba Nouri, was born on 3 November 2011 suffering from trachea-oesophageal fistula (a TOF) which is an abnormal connection between the oesophagus and the trachea.

The appellants were expecting twins, and argued that had they been told that Twin B may have had a trachealoesophageal fistula (a TOF) earlier, they would have undergone a termination of the fetus.

On 6 September 2011 (gestation 28 weeks and 2 days), there was a discussion about Ms Nouri’s pregnancy at a high-risk meeting at the Fetal Medicine Unit at Canberra hospital. In particular, there was discussion about the increased amniotic fluid together with the possibility of a trachealoesophageal fistula (TOF).  Dr Robertson did not discuss the meeting with the Appellants. The twins were delivered on 3 November 2011, and it was later that day that Mr Shaor was told that Twin B had a TOF. 

The main issues were when disclosure ought to have taken place, and whether the parents would have and could have obtained termination at that point. In the primary judge’s view, 30 weeks and 4 days gestation was the earliest date when a duty to inform the Appellants of a possible TOF may have arisen. Expert evidence indicated that a termination would have been refused in Australia would have been available in the US.    

The primary judge identified a number of different factual obstacles to the success of the Appellants’ case and the Court of Appeal ultimately agreed, saying “It is certainly theoretically possible that a person in Ms Nouri’s position, with an extraordinary degree of determination, effort and organisation, could have achieved the outcome of a selective termination. However, the absence of a firm diagnosis, the lack of encouragement that she would have received from her treating medical specialists, the need to locate and decide to be treated by a suitable practitioner in the United States, the risks of travel to the United States to both herself and the healthy twin, the logistical hurdles that would need to be overcome in getting to and from the United States, the significant expense that would be involved in such an exercise and the shortness of the time available mean that the balance of probabilities is not in favour of her having achieved that outcome,” Paragraph 103. 

Psychiatrist Dr Anthony Slowiaczek disqualified

Dr Anthony Slowiaczek was a specialist psychiatrist practising at the Maitland Specialist Centre, attached to the Maitland Private Hospital in Maitland (“Centre”).

Between 2012 and 2016 he engaged in an improper personal and sexual relationship with Patient A, a vulnerable female patient.  Patient A had a history of childhood sexual abuse and sexual exploitation and had been previously diagnosed as suffering from Attention Deficit Hyperactivity Disorder, complex Post-traumatic Stress Disorder and depression.

Dr Slowiaczek:
• inappropriately prescribed to Patient A a drug of addiction
• inappropriately prescribed medication to a friend and a close family member
• failed to maintain adequate medical records, and
• suffers from an impairment which is managed by medication and continuing weekly psychiatric consultations and psychotherapy. 

Dr Anthony Slowiaczek was found guilty of professional misconduct; is disqualified from registration as a medical practitioner; may not file any application to review the disqualification until after 30 September 2023.

Plastic surgeon Dr Ian Holton suspended

Dr Holten is a plastic surgeon and between July 2011 and January 2014 he provided cosmetic medical and surgical services to the patient on 10 occasions. Before he provided professional services to her, they had met on numerous occasions and were in a friendship circle that revolved around common interests.

Over the period of the professional relationship, Dr Holten and the patient contacted each other regularly via telephone calls and text messages, met for coffee, and sat in his car together and discussed their personal lives and the patient’s marital difficulties. He failed to manage professional boundaries for some time. In January 2014, he had sexual intercourse with her. On or about 11 and 12 January 2014, Dr Ian Holten behaved in a way that constituted professional misconduct by engaging in sexual misconduct, in that he had sexual intercourse with a patient.

Tribunal findings:

Between about 12 July 2011 and 17 January 2014 (inclusive), Dr Ian Holten, behaved in a way that constituted unprofessional conduct, in that he failed to maintain the professional boundaries that should, and ordinarily do, exist between a  medical practitioner  and their patient .

Dr Holten’s registration is suspended for a period of three months, the suspension to commence on 11 July 2019.

The tribunal stated: “We are satisfied that Dr Holten is at low or no risk of repeating the conduct. He has practised safely not only for the last five years, but also for decades prior to that. He is otherwise of good character. His early admissions and cooperation are to his credit. There has already been a considerable personal impact on him. “

Source: http://www6.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VCAT/2019/837.html

Psychiatrist gets vulnerable patient pregnant

A Melbourne psychiatrist got a patient pregnant after she was referred to him following a workplace sex assault.

The patient saw Dr Luke Ainsworth five times during 2016 and a personal relationship unfolded between them. A sexual relationship ensued and she soon discovered she was pregnant. She alleged she felt pressure by him to terminate the pregnancy, which she did.

The Medical Board of Australia was notified of his conduct in August 2016 and referred the matter to the tribunal. After this, Dr Ainsworth gave an undertaking not to practise and allowed his registration to lapse.

The Victorian Civil and Administrative Tribunal found him guilty of professional misconduct and disqualified him from applying to register as a medical practitioner before December 31.

The Tribunal noted “We regard it as appropriate to take into account Dr Ainsworth’s period of non-practice when he was fit to practice and reject the submission of the Board that this was not relevant as he did not seek to practise during this time. We are of the view that it demonstrates some insight into the seriousness of his conduct. We felt that a period of three years of non-practice was warranted to reflect the seriousness of the conduct and to send a message to Dr Ainsworth and other practitioners and thus determined that Dr Ainsworth should be disqualified until 31 December 2019.”

http://www6.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VCAT/2019/734.html

Sexual Misconduct by Doctors, Health Care Professionals in NSW | Cases 2017-2018

List of health care practitioners prosecuted by the Health Care Complaints Commission in NSW for misconduct of a sexual nature/ boundary violations with patients.

2018

2017

  • Dr Phillipa Rickard
  • Dr Nirmit Milan Sheth, General Practitioner
  • Mr Robert Ferguson (Bray-Ferguson), a non-registered health practitioner providing counselling services as a qualified social worker.
  • Mrs Brooke Ledner, Psychologist
  • Dr Teresa Wong, General Practitioner
  • Dr Mohamed Payenda Zhouand Safi, General Practitioner
  • Dr Elvin Suet Pang Cheng
  • Dr Saeid Saedlounia
  • Dr Miodrag Huber, General Practitioner
  • Dr Elvin Suet Pang Cheng.
  • Mr Harry Mayr, Psychologist
  • Dr Aamer Sultan, Medical Practitioner
  • Mr Anthony Elliot, Enrolled Nurse

… more info to come on sexual misconduct and disciplinary cases.

 

Emil Gayed Gynaecologist Doctor under investigation for medical negligence and misconduct

HCCC Prosecution of Dr Emil Gayed, Gynaecologist for misconduct

The NSW Health Care Complaints Commission recently prosecuted a complaint against Dr Emil Shawky Gayed, a formerly registered obstetrician and gynaecologist, before the NSW Civil and Administrative Tribunal (‘the Tribunal’). The complaints related to the management of 7 patients over a 3 year period at the Manning Rural Referral Hospital in Taree NSW.

The most serious of complaints against Dr Gayed were:

    1. Performing a hysterectomy when it was not clinically indicated.
    2. Failing to identify a 10 week pregnancy when performing an endometrial ablation on a patient.
    3.  Informing a patient that he was certain she had cervical cancer and undertaking procedures on her post-partum cervix that were not clinically indicated as there was no evidence of cervical malignancy.
    4. Undertaking a diagnostic laparotomy and unnecessarily removing a patient’s right ovary and fallopian tube which appeared normal and injuring the patient’s left ureter in the process.

On 6 June 2018, the Tribunal found Dr Gayed guilty of professional misconduct.  The Tribunal ordered that if Dr Gayed was registered, it would have cancelled his registration and that Dr Gayed be disqualified from being registered for a period of 3 years.

National Inquiry into Dr Gayed

On 25 June 2018,  the New South Wales Department of Health announced an inquiry into the disgraced gynaecologist Dr Gayed and his work for at least four public hospitals Cooma hospital, Kempsey district hospital, Manning Base hospital and Mona Vale hospital.

The inquiry will be conducted by barrister Gail Furness SC, who will be assisted by specialist obstetrician and gynaecologist Doctor Greg Jenkins. Ms Furness and Dr Greg Jenkins, are due to report back by 30 September.

Youngjin Jung, NSW Physiotherapist jailed for Indecent Assault and Deregistered

Central Coast Physiotherapist jalied and deregistered

Name: Youngjin Jung

Education: Physiotherapist; graduated from Curtin University, 2009.

Practice: Ocean Beach Physiotherapy Practice at Umina Beach, Central Coast, NSW.

Criminal case: Jung v R [2017] NSWCCA 24 (6 March 2017)

Civil case/disciplinary action: Deregistered 7 years from 19 April 2018; Health Care Complaints Commission v Jung [2018] NSWCATOD 53

Overview of legal action against Youngjin Jung

In 2016 Mr Jung was convicted of eight counts of indecent assault in relation to six female patients that occurred between 23 April and 12 June 2014. Mr Jung was sentenced to an aggregate sentence of five years’ imprisonment with a non-parole period of three and a half years. He will be eligible for parole on 22 August 2019.

Indecent assault accusations against the physiotherapist included massaging patients’ breasts and touching pubic area of a patient. The “conduct was not in any way related to therapeutic treatment,” Judge Clive Jeffreys said in handing down his sentence. “It was undertaken by the offender for sexual gratification­.”

The Health Care Complaints Commission (‘the Commission’) prosecuted Mr Youngjin Jung before the NSW Civil and Administrative Tribunal (‘the Tribunal’). The Commission alleged that because Mr Jung had been convicted of criminal offences in NSW he was not a suitable person to hold registration as a physiotherapist.

On 19 April 2018, the Tribunal found that Mr Jung was not a suitable person to hold registration as a physiotherapist. The Tribunal cancelled Mr Jung’s registration and ordered a non-review period of 7 years. The Tribunal also made a prohibition order that Mr Jung be prohibited from providing any health services for a period of seven years.

Dr Ian De Saxe, Psychiatrist, Professional Misconduct Case

Professional Misconduct case against Dr De Saxe, Psychiatrist

Name: Dr Ian De Saxe

Specialty: Psychiatry. Graduated from the University of Sydney, Dr De Saxe had been practising since 1987.

Practiced at: The Rocks, Sydney; Mosman Private Hospital.

Summary: Engaged in mutual masturbation and penetrative sex with male patient; massaged legs of another patient; made statements that sexual conduct with under-aged children was “okay”. Inappropriate prescribing and self-prescribing; and inadequate record keeping.

Findings: Professional misconduct; registration cancelled for 2 years. Date of order: 29 March 2018.

Case: HCCC v De Saxe [2018] NSWCATOD 45

Facts of Case

The Tribunal found that the practitioner engaged in inappropriate sexual conduct with patient A. Dr de Saxe engaged in mutual masturbation with patient A on two occasions and engaged in penetrative sexual intercourse with patient A on one occasion.

Dr de Saxe prescribed Methadone/Physeptone, a Schedule 8 drug of addiction to patient A in quantities which did not accord with the recognised therapeutic standard for the appropriate treatment in the circumstances. The patient was not the subject of a treatment plan and the practitioner was not an accredited NSW OTP prescriber and accordingly held no authority to prescribe such drugs. The practitioner prescribed patient A other drugs in similar circumstances, namely Alprazolam and Dexamphetamine. The records of such treatment were not maintained.

Patient B, a 27-year-old male was referred to the practitioner for an opinion and management of alcoholism and major depression. During one consultation Dr de Saxe massaged patient B’s legs and asked patient B words the effect: “Do you want me to go any higher?”. The practitioner acknowledged that he was sexually attracted to patient B.

Dr de Saxe treated patient C whilst he was under his care at the Mosman Private Hospital between 16 August 2010 and 15 September 2010. He consulted patient C on at least six occasions between 17 August 2010 and 10 September 2010. He did not communicate with the patient’s former treating psychiatrists or psychologists; nor put a treatment plan in place. Further, the Tribunal found as a fact that Dr de Saxe engaged in inappropriate discussion concerning the patient’s sexuality and desires and made statements to the effect that sexual conduct with under-aged children was “okay”. Not that patient C had been charged with child sex offences involving a 15 year old male.

The Tribunal found, but that Dr de Saxe claimed to have no recollection, that he looked into the patient’s eyes whilst the patient was talking about his sexuality and invited the patient to engage in a sexual act with him by saying to the patient “suck my cock”. The Tribunal found that the patient’s version of events was correct in respect of the words used by Dr de Saxe to the patient concerning the writing of a report that was required to be used in pending court proceedings involving the patient.

The Tribunal also found that Dr de Saxe stated words the effect that he was willing to lie for the patient in respect of the report. He also failed to keep adequate records of his treatment for patient C. He failed to prepare a comprehensive admissions assessment and treatment plan; to record sufficient corroborative information from other mental health practitioners; to record specific information concerning treatment during admission and to record sufficient detail in the progress notes and discharge summary.

The Tribunal also found that between 7 April 2010 and 28 October 2014, Dr de Saxe inappropriately self-prescribed medication including Schedule 4D prescribed restricted substances.

News Articles for further reading:

Sydney psychiatrist banned for 2 years (news.com.au)

“Sydney psychiatrist suspended over telling an accused paedophile having sex with an underage boy ‘wasn’t that bad’ and that he was ‘willing to lie for him’ after asking him for oral sex”, dailymail.co.uk

Banned Psychiatrist starting another career: “The tribunal heard that Dr de Saxe was attracted to young men and had moved his practice away from ‘the sort of risky type’. Since being suspended from practising medicine, he had started a course to teach English as a second language and told the tribunal he thought it would ‘be helpful to be able to test his boundaries around students’, despite acknowledging that being around young men was a ‘potential risk’.” Source: ABC news.