Home The Quarterly 2014 Professionalism - Recent Cases


Professional Boundaries, Professionalism and Goals of Care - recent cases and an article of interest Print E-mail
The Quarterly 2014

I thought I would share three recent cases that may be of interest to the College.

The first case is Medical Board of Australia and Dekker [2013] WASAT 182 decided on 14 November 2013. This is an interesting case relating to the duty of care of doctors when it comes to rendering assistance as good samaritans which may have significance. The Medical Board of Australia alleged that Dr Dekker was guilty of "infamous or improper conduct in a professional respect" for not stopping to render assistance after she and another vehicle nearly collided. Dr Dekker claimed she did not see the other car crash but thought she did hear the noise of impact. She had immediately driven straight to a police station and reported the incident and possible crash, believing this to be the most reasonable and appropriate action as she claimed did not have a mobile phone with her or any medical equipment to be able to assist. Interestingly, the proceeding was only heard 11½ years later due to delayed notification to the Board. Improper conduct is defined as conduct reasonably regarded as improper by professional colleagues of good repute and competency. In contrast, infamous conduct has a higher threshold, and is conduct that would reasonably be regarded as disgraceful or dishonourable. It should be noted that both can be considered "in pursuit of the practitioner's profession” although they can still occur outside the course of carrying out medical practice if there is a sufficiently close nexus. On appeal, the State Administrative Tribunal concluded that "because saving human life and healing sick and injured people is a core purpose and ethic of the medical profession...failure by a medical practitioner to make an assessment and render assistance when she is aware that a motor vehicle accident…may have occurred…when the practitioner is physically able to do so would…reasonably be regarded as improper." So the doctor was found to have had “improper conduct”, but not “infamous conduct”. It was noted that if the doctor had not reported the incident to the police, her conduct would have been considered infamous. Although there was no further disciplinary action, and there was no actual finding of the existence of breach of duty of care, this outcome is still significant in that an adverse finding can still occur.
The second case is Medical Board of Australia v Blomeley [2014] QCAT 160 heard on 23 May 2014, regarding a complaint against a general practitioner referred to the Queensland Civil and Administration Tribunal by the Medical Board of Australia. The general practitioner had engaged in a sexual relationship with a female patient, and after the relationship ended, the patient made a complaint to the Board. The Tribunal accepted that the relationship was sincere and both parties had strong feelings for the other. However, the Tribunal found that the general practitioner 's conduct amounted to professional misconduct, and determined that despite the relationship being consensual and genuine, it was the practitioner's duty, not the patient's, to maintain appropriate professional boundaries. The Tribunal reprimanded the general practitioner and suspended his registration for 15 months. This case is a reminder that professional boundaries are of utmost importance for health practitioners, even when genuine mutual feelings are involved. In short, health practitioners cannot breach professional boundaries with their patients at any time.
The third case is Tracey v Cambridge University Hospitals NHS Foundation Trust & Ors [2014] EWCA Civ 822, a landmark case from the UK which may have future significance here in relation to NFR (not for resuscitation) orders. David Tracey brought proceedings on behalf of his late wife, Janet Tracey, against Cambridge University Hospital NHS Foundation Trust. Mrs Tracey was diagnosed with lung cancer, and given an estimated nine months to live. She subsequently suffered a serious cervical fracture in a motor vehicle accident two weeks later. Clinical staff, not unreasonably, placed a DNR [do not resuscitate] notice on her medical record without discussing this with the patient or family. When the family found out, they requested that the order be removed stating that Mrs Tracey would wish to receive full active treatment despite her medical conditions. The English Court of Appeal ruled that the Trust failed to involve Mrs Tracey in the DNR decision and violated her “right to respect for her private life” under article 8 of the European Convention on Human Rights. In addition, the Court found that there was a common law duty to consult patients regarding treatment decisions and there would have to be convincing reasons to support a decision not to involve the patient in a DNR decision. The Court also found that distress alone would be unlikely to be sufficient grounds not to involve a patient unless the distress is likely to cause the patient a degree of harm. This case is of interest as historically DNR (or not-for-resuscitation/NFR) decisions have always been considered to be clinical decisions made by the treating team, with discussions with patients highly recommended, but not compulsory. We should continue to watch how this judgment in the UK impacts on the application of law here in Australia, and I will endeavour to keep the College updated.
I also thought I would share a recent journal article that I have found interesting. The article is by Cochran and Elder titled ‘A Model of Disruptive Surgeon Behaviour in the Perioperative Environment’ J Am Coll Surg 2014;219:390-398, which found that surgeons are the physicians with the highest rates of documented disruptive behaviour. The authors found that verbal hostility and throwing or hitting objects were the most commonly described disruptive behaviours. The most frequent situational stressors were when something went wrong during an operation and working with unfamiliar team members. The authors concluded that disruptive physician behaviour has strong implications for the work environment and patient safety. I believe that the concepts described in this article can be generalised not just to interventionalists, but to all clinicians who work in a high-stress, high pressure environment that modern medicine now entails. All of us as doctors should constantly remember that we must hold ourselves to a higher standard and ensure that our profession maintains its integrity and strong reputation during times of stress. This statement applies most to our medical leaders, unit heads and other senior doctors, who are role models for the next generation who will come after us. We must also remember that as doctors we are the clinical leaders for the rest of the interprofessional team, and must remain examples of professionalism at all times.

Associate Professor Erwin Loh

The Royal Australasian College of Medical Administrators
Associate Professor Erwin Loh, , p709
www.racma.edu.au /index.php?option=com_content&view=article&id=709&Itemid=411