Category: Disciplinary Cases

On 15 November 2018 patient A was admitted to the Mater Hospital, North Sydney for a colonoscopy. Patient A understood that meant he would be put under a general anaesthetic and Dr McKay would look around his colon through a camera.

Dr McKay admits that during the procedure-

1. He inappropriately invited Dr Hill (the anaesthetist attending at the procedure) to conduct a digital rectal examination of patient A while patient A was under anaesthesia and without his knowledge or proper informed consent and without a valid clinical reason; and
2. He took a non-clinical photograph of patient A with his mobile phone, recording the examination performed by Dr Hill.

The scout nurse heard Dr McKay say to Dr Hill, “Put on your gloves and have a feel of the tumour. It’s a once in a lifetime opportunity”. Dr Hill agreed that those were the words used by Dr McKay. While the scout nurse was cleaning up after the procedure, she saw Dr Hill put on blue non-sterile gloves, walk down to the end of the bed, and put one or two fingers into patient A’s rectum. As he did this, she heard both doctors giggling. 

The scout nurse then saw Dr McKay was holding a mobile phone that he was pointing towards Dr Hill, and she could see him taking photographs of the patient whose legs were in stirrups with Dr Hill’s fingers in his rectum. Dr McKay said, “I’m taking these photos to send to all your anaesthetist mates so they can see you with your fingers stuck up the patient’s arse”.

Dr Gary McKay, Colorectal Surgeon, provided false and misleading information to the Mater Hospital about taking the photograph. He also failed to adequately disclose that he had taken the photograph to the patient and attempted to persuade him not to complain to the police about it.

It was found that Dr McKay’s conduct was both improper and unethical. 

The Civil And Administrative Tribunal of NSW stated at paragraph 64:

“In our opinion this cannot be simply described as a jocular incident in an operating theatre. At the invitation of Dr McKay, Dr Hill inserted his fingers into the rectum of patient A. Patient A was unconscious. Patient A had not consented to the examination. Dr McKay took photographs of patient A while he was in this state. He joked about whether he would send the photographs to other doctors. We agree with the description used by counsel for the Health Care Complaints Commission – patient A was being used as a prop for a joke. We consider this a very serious and significant departure from the standard expected of a medical practitioner.

We also consider Dr McKay’s failure to openly disclose what he had done, firstly to his employer and then to patient A, to be a very serious departure from the conduct expected of a medical practitioner. As Dr McKay conceded, he did this out of self-interest because he was concerned at the possible consequences, including the loss of his job and criminal charges. We take into account that Dr McKay wrote those two misleading letters to the Hospital after he had had time to reflect and then made a deliberate decision to not fully disclose what had occurred.

Being ethical and trustworthy are fundamental requirements of a practitioner.”

Source Health Care Complaints Commission v McKay [2022] NSWCATOD 95. Decision date: 26 August 2022.

Furthermore the Tribunal remarked “We must make clear to other practitioners and patients that conduct such as that which Dr McKay exhibited both in the operating theatre and then by failing to make full and open disclosure to his employer and the patient, will not be tolerated.”

The Tribunal suspended Dr Gary McKay’s medical registration for 3 months.

UPDATE: On 21 April 2022, the Tribunal ordered that Dr Mooney’s medical registration be cancelled with a non-review period of 12 months. In determining to cancel his registration the Tribunal considered the seriousness of the conduct, the need for general deterrence, the maintenance of confidence in the medical profession and the necessity to give Dr Mooney an opportunity to complete the journey into gaining full insight . 

Source: Health Care Complaints Commission v Mooney [2022] NSWCATOD 44

PREVIOUSLY: We previously reported that Dr William Mooney was under investigation by the Health Care Complaints Commission. The HCCC has since prosecuted complaints against Dr William Mooney before the NSW Civil and Administrative Tribunal (‘the Tribunal’). The Tribunal made a finding of professional misconduct. The case can be found here.

Findings included-

Patient A:

Patient A, a 24-year-old man, died in March 2018 following a botched operation performed at Strathfield Private Hospital by Dr Mooney. Dr Mooney performed a septoplasty /turbinate reduction and UPPP with dissection tonsillectomy on Patient A far too quickly. The patient suffered from an arterial bleed. The Tribunal accepted joint expert evidence that performing these procedures too quickly impacts on the quality of the surgery and surgical outcomes. The time taken for the operation was significantly below standard and accordingly unsatisfactory professional conduct.

Patient A was discharged (without review by Dr Mooney, although he says he had spoken to staff). Dr Mooney’s failure to provide post-operative care was also found to be unsatisfactory professional conduct. Patient A subsequently returned to hospital via ambulance as they were vomiting blood. Whilst in hospital they suffered a cardiac arrest, massive haemorrhaging and multiple organ failure. CPR was performed for 45 minutes.  On 2 March 2018 patient A was pronounced brain dead and on 3 March 2018 he passed away. The cause of death was noted as recurrent haemorrhage following the operation.

Patient B:

Patient B was 41 when he died as a result of a sinus operation performed by Dr Mooney at East Sydney Private Hospital in December 2017 during which Dr Mooney caused “significant intracranial trauma.” Dr Mooney conceded he didn’t have the CT scans when doing the operation, and the injuries occurred because he became disoriented. The tribunal held it was not possible for Dr Mooney to have navigated his way through the frontal recess without having CT scans to guide him.

The tribunal also said this operation “was a complex procedure fraught with potential serious risks”. By operating so quickly, Dr Mooney “could not have been taking appropriate care”.

The patient quickly deteriorated whilst in the recovery ward. He was stabilised, intubated and then transferred by ambulance to Prince of Wales Hospital. 

At Prince of Wales Hospital a CT spiral angiography with contrast found an extensive subarachnoid haemorrhage, with a clot extending through a defect in the right cribiform plate. The cribiform plate is a bone which is adjacent to the frontal sinus from which Dr Mooney had intended to remove tissue. Above the cribiform plate is the brain.

Another CT scan conducted at approximately 12pm on 12 December 2017 showed there was no blood flow to the brain.

At 10:30am on 13 December 2017, patient B passed away at Prince of Wales Hospital.

The coroner concluded that the instrument used during surgery had caused the 0.6 diameter bone defect in the cribriform plate and disruption of the right anterior cerebral artery accompanied by a haemorrhagic defect in the right frontal lobe.

The Tribunal stated “We are satisfied that the most likely explanation for the injuries to patient B is because Dr Mooney became disoriented while performing the operation and was in the cranial cavity when he thought he was in the frontal sinus. He then inserted an instrument into his endoscope, and while moving that instrument, probably with some force, made a hole in cribiform plate and damaged an artery. Some brain tissue containing bone shards moved into the hole in the cribiform plate.”

At the s 150 hearing on 15 March 2018 Dr Mooney he said he did not think initially there had been an intracranial event. When the patient was stabilised in recovery he examined his nose with a scope. There was no bleeding and there was no CSF leak, but his general neurological status caused Dr Mooney great concern, and he realised immediately that something terrible had gone wrong. At this time that he feared patient B had suffered a hypertensive post-operative stroke. He discussed this with the anaesthetist who also felt it was the likely diagnosis.

Dr Altmann, one of the expert witnesses, found it astounding that an experienced ENT Surgeon who had just operated in the frontal ostia of a patient who had had multiple previous sinus operations with distorted anatomy would consider any possibility other than that he had just caused an iatrogenic intracranial surgical complication as the first, second and third most likely possibilities before even imagining other potential causes for the patient’s poor neurological status and seizures in recovery.

Patient C:

From 2013-2016, Dr Mooney inappropriately formed a personal relationship with and prescribed medication to patient C. In mid 2014 patient C asked Dr Mooney out. They had drinks, then dinner and then went to a hotel room. Dr Mooney told the delegates he had drunk wine and his memory was unclear, but he did not have any memory of “sexual congress”. He said “Did we kiss? Perhaps.” He woke up in his own bed at home. Dr Mooney said this was the one liaison he had with patient C, and his memory of it was blurry at best. The HCCC obtained records from Telstra and another s 150 inquiry was held on 25 June 2018. That information was the following:

1. Between 4 October 2013 and 19 January 2016, 3,425 text messages were sent between Dr Mooney and patient C;
2. Between 4 October 2013 and 19 January 2016, 807 phone calls were made between Dr Mooney and patient C.

Dr Mooney had also inappropriately prescribed the patient Duromine- a weight loss drug. The Tribunal were satisfied that the relationship was both exploitative and inappropriate. Dr Mooney had also misled the Medical Council of NSW delegates on 1 February 2017 in statements he made concerning patient C.

The Conditions Complaint:

Conditions were placed on Dr Mooney’s registration on 25 June 2018 to attend hair drug screening. The Tribunal found that Dr Mooney practiced in breach of his conditions including by: practicing for one month without the required supervision, saw patients and practiced while certified as unwell instead of attending hair testing; and, failed to provide supporting information to explain his absence from the required testing. 

Final Decision:

Dr Mooney was found guilty of professional misconduct. The Tribunal will determine protective orders following a further (Stage 2) hearing.

Source: Health Care Complaints Commission v Mooney [2021] NSWCATOD 206

The Health Care Complaints Commission of NSW prosecuted a complaint against Dr Paul Cozzi, a consultant urologist before the Medical Professional Standards Committee (the Committee).

The complaint alleged that Dr Cozzi, in November 2015, failed to properly supervise a trainee urologist operating at St George Public Hospital, Sydney, in circumstances where Dr Cozzi was operating elsewhere at a private hospital at the same time; did not have appropriate medical records; and made false or misleading statements to investigators in 2016-2017.  

On 3 November 2020, the Committee found Dr Paul Cozzi guilty of unsatisfactory professional conduct on the basis that:  

Failure to Supervise Trainee Doctor

1. Dr Cozzi was responsible for supervising a trainee urologist (“Dr X”) operating on his patients at St George Public Hospital, Kogarah, Sydney (SGH). After his public list started, Dr Cozzi then drove to the Mater Private Hospital and operated on his private patients, whilst Dr X operated without direct supervision on 4 patients at St George Public Hospital. Dr Cozzi did not tell Dr X where he was going.
2. Dr Wong, the expert witness for the Commission, stated that a supervising consultant must be available to assist in case of difficulty or emergency. Patient safety requires this. He was strongly critical of a supervising consultant leaving the grounds of SGH during an operating list, and particularly leaving to go to another operating theatre.
3. The Committee was of the opinion that having two concurrent surgical lists is not acceptable professional practice. Dr Cozzi’s failure to properly supervise the trainee was significantly below the relevant standard.
4. “His conduct is reprehensible and it is only fortuitous that no patient suffered as a result of his actions,” paragraph 176, Professional Standards Committee Enquiry; Dr Paul Joseph Cozzi, Decision 3/11/2020.

Lack of credibility and trustworthiness as a witness

1. The Committee did not find Dr Cozzi to be a credible or trustworthy witness. Dr Cozzi gave inconsistent and contradictory information about his conduct and activities on 12 November 2015. He made incorrect statements to the investigators on five occasions.  
2. The Committee considered that “many of his answers were designed to obfuscate and deflect attention from the relevant issues. He did not make a genuine attempt to answer questions in a frank or open manner,” paragraph 49.

Signing of blank documents

1. Dr Paul Cozzi pre-signed blank count sheets and safety checklists for surgeries on patients at St George Public Hospital which he did not attend.
2. The procedures for signing count sheets and safety checklists are designed to ensure patient safety.
3. Signing sheets for surgeries when he was not present infringes basic standards of professional practice and contravenes the record keeping regulations.

Determination: Unsatisfactory Professional Conduct

The Committee found that Dr Paul Cozzi’s conduct was reprehensible and unsatisfactory professional conduct. He was reprimanded in the strongest possible terms.

The Committee ordered that Dr Paul Cozzi must be subject to supervision, must complete an ethics course and must not supervise trainees.

Source:  HCCC media release: Dr Paul Cozzi ; Statement of Decision.

UPDATES:

According to the article “Dr Paul Cozzi reprimanded by the Health Care Complaints Commission over unsatisfactory professional conduct” by M Porter, The Leader 16.11.2020, Dr Cozzi has defended his actions and said he would be appealing the decision. The article quotes Dr Cozzi as saying “The decision to proceed and supervise the experienced trainee both directly and indirectly to complete the list without incident was made in the patients’ best interests and after careful consideration, knowing that the nature and complexity of the cases was such that they could be completed safely… The decision was made with the full approval of the Department of Urology and the trainee.”

However a letter to The Leader published on 07.03.2021 from a group of urological surgeons comprising the Department of Urology at St George Hospital (Dr Peter Aslan, Prof David Gillatt, Dr Anthony Hutton, Dr Dominic Lee, Dr David Malouf, Dr Peter Nash, Dr Anu Ranasinghe and Dr James Thompson) stated:

“There was written and verbal discussion between Dr David Malouf, Dr Anthony Hutton and Dr Cozzi in the days prior to the list. It was noted he had simultaneous operating lists in different hospitals scheduled on the Thursday morning and that this represented a breach of his duties as a surgical trainer.

It was made clear to Dr Cozzi that if his supervision of the trainee was not going to be appropriate, then the only option would be to cancel the St George Hospital list. Dr Cozzi gave a verbal undertaking that he would appropriately supervise the list, and this was the basis for the agreement to allow the list to proceed.”

Dr Joe Grech, General Practitioner has been suspended by the Civil And Administrative Tribunal, NSW, for a period of 6 months. It was found that-

1. Dr Grech inappropriately prescribed erectile dysfunction medication, benzodiazepines, anti-psychotic drugs, Duromine- a weight loss medication. With one minor exception, the Tribunal found Complaint 1 to constitute unsatisfactory professional conduct.
2. Dr Grech breached professional boundaries with patients, particularly by providing medical treatment to his mentally ill girlfriend, and this amounted to unsatisfactory professional conduct.
3. Dr Grech gave false and misleading information to the Medical Council when he denied that Patient C had ever been his patient. This is unethical, and the Tribunal found that it constituted unsatisfactory professional conduct.
4. Dr Grech failed to notify the National Board within 7 days, that he had been charged on 24 April 2018 with criminal offences punishable by 12 months imprisonment or more and that on 4 February 2019 he had been the subject of findings of guilt for offences punishable by imprisonment. Technically, this complaint constitutes unsatisfactory professional conduct.
5. The Tribunal found: “… we consider the appropriate order to be that Dr Grech be reprimanded and that his registration be suspended for 6 months. During that time, if Dr Grech wishes to resume practice, he must satisfactorily complete a tailored education program….On resuming practice, Dr Grech’s registration will be subject to the conditions identified below. He must practise under what is known as category C supervision. He must practise only in a group practice where there are at least two other registered medical practitioners. Such a condition helps ensure that Dr Grech will receive support from professional colleagues. He will not receive that support if he engages in home visits or visits to aged care facilities, so he is prohibited from consulting in those environments. Although Dr Grech’s inappropriate prescribing related to Schedule 4D drugs, he should also be prohibited from dealing with Schedule 8 drugs. Both Schedules comprise drugs of dependence and Dr Grech has not demonstrated that he can appropriately prescribe such drugs. In addition, we strongly recommend that Dr Grech be subject to a Performance Assessment.”
6. Dr Grech had practised in various locations in Sydney including Broadway and Darlinghurst.

Source: Health Care Complaints Commission v Grech [2021] NSWCATOD 14

According to the Herald, “for nearly two decades police received a steady stream of intelligence suggesting that Dr Grech has been involved in drug supply and possession and has been providing false medical certificates in return for cocaine, heroin and ice.”

Source: “Prominent GP suspended for lying to medical body, inappropriately prescribing drugs”, SMH 04.02.21

According to a study using complaints data from health regulators in Australia, mental health practitioners (psychiatrists and psychologists) are more likely to be the subject of complaints than physical health practitioners.

Areas of increased risk are related to professional ethics, communication skills and the health of mental health practitioners themselves.

Other findings included:

1. The complaint rate among psychiatrists was more than double than among physicians.
2. The complaint rate among psychologists was nearly treble than among other allied health practitioners.
3. Psychiatrists had nearly double the risk of complaints about communication and nearly five times the risk of complaints about prescribing as their physician colleagues.
4. Male psychiatrists and psychologists had higher complaint rates than their female peers .
5. Mental health practitioners had three times the risk of complaint regarding sexual boundary breaches compared with physical health practitioners.
6. Older mental health practitioners had a higher risk of complaints than their younger peers, after adjusting for sex and practice location. For both psychiatrists and psychologists, complaint risk increased steadily by age band, with practitioners aged ≥65 years having around twice the risk of complaint compared with those aged 36–45 years.

The authors of the study analysed 7903 complaints over a 6 year period from 2011-2016. The complaints dataset consisted of information on all complaints about these practitioners lodged with regulators during the study period. AHPRA provided complaints data for all states and territories, except New South Wales. HPCA provided equivalent data for New South Wales.

It was also noted that “the complaints in our study probably underrepresent harm and concern experienced by patients as we only included complaints to regulators, thus missing complaints made directly to the practitioner, their employer or other agencies, and adverse events where no complaint was laid.”

Source: Veness BG, Tibble H, Grenyer BFS, et al. Complaint risk among mental health practitioners compared with physical health practitioners: a retrospective cohort study of complaints to health regulators in Australia. BMJ Open 2019;9:e030525. doi:10.1136/ bmjopen-2019-030525