Civil and Administrative Tribunal New South Wales

• Medium Neutral Citation: Health Care Complaints Commission v Bours (No 1) [2014] NSWCATOD 113
• Hearing dates: 10-14, 17-21 February 2014
• Decision date: 13 October 2014
• Jurisdiction: Occupational Division
• Before: J Hughes, Principal Member; V du Toit, Podiatrist Member; L Taylor, Podiatrist Member; M Turner, Lay Member

Decision

1.The Tribunal found all four of the complaints alleged against the practitioner to be proved, making findings of unsatisfactory professional conduct and professional misconduct within the meaning of sections 139B and 139E of the National Law respectively.

2.The Tribunal made a non-publication order precluding publication of the names of the four patients referred to in the schedule to the Complaint before the Tribunal, who are referred to as Patients A, B, C and D in these reasons for decision. The non-publication order extends to publication of the names of the mother and daughter of Patient B.

3. The parties shall, in a second-stage hearing at a date to be fixed by the Registrar, have opportunity to make oral and written submissions as to the appropriate consequential orders following these findings, including as to costs.

• Catchwords: PROFESSIONAL DISCIPLINE - Admissibility of expert evidence; admissibility of expert evidence obtained for other civil proceedings; composition of Tribunal; consent forms; consent to surgery; controversial medical procedures; harassment of expert witness; legally qualified McKenzie friend; prescribing medications without authority; self-represented respondent giving evidence
• Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW); Health Practitioner Regulation National Law 2009 (NSW); Poisons and Therapeutic Goods Act 1966 (NSW); Therapeutic Goods Act 1966 (NSW)
• Cases Cited: Allinson v General Counsel of Medical Education and Registration (1894) 1 QB 755; Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 CLR 336; Donnelly v Health Care Complaints Commission (NSW) [2011] NSWSC 70; Gianoutsos v. Glykis (2006) 65 NSWLR 539 at 547-9; HCCC v. Gillett [2007] NSWNMT 7); HCCC v. Litchfield [1997] NSWSC 297, (1997) 41 NSWLR 630; In re Dr Suman Sood [2006] NSWMT 1; King v Health Care Complaints Commission [2011] NSWCA 353; Lucire v Health Care Complaints Commission [2011] NSWSC 99; Medical Board of Australia v Judge Horeman-Wren & Leggett [2013] QSC 339; NSW Bar Association v. Hamman (1999) NSWCA 404; Qidwai v Brown (1984) 1 NSWLR 100; Re Dr Parajuli [2010] NSWMT 3; Pillai v Messiter (No 2) (1989) 16 NSWLR 97
• Category: Principal judgment
• Parties: Health Care Complaints Commission (Complainant); Dr Paul Bours (Respondent)
• Representation: Counsel; S McNaughton (Complainant); Health Care Complaints Commission (Complainant); Self-represented (Respondent)
• File Number(s): 1420021
• Publication restriction: Non publication order in respect of patients named in the complaint and their family members who gave evidence

reasons for decision

What the Tribunal decided

1 On 13 October 2014 the New South Wales Civil and Administrative Tribunal Occupational Division (Health Practitioner Division List) published reasons for decision in respect of the Complaint which was brought by the Health Care Complaints Commission ("the HCCC") and lodged with the then New South Wales Podiatry Tribunal on 24th January, 2013. The Tribunal found all four of the complaints alleged against Dr Paul Bours set out in the Complaint to be proved, making findings of unsatisfactory professional conduct and professional misconduct within the meaning of sections 139B and 139E of the National Law respectively.

2 The Tribunal made a non-publication order pursuant to Schedule 5D, clause 7 of the National Law. This order precludes publication of the names of the four patients referred to in the schedule to the Complaint before the Tribunal, who are referred to as Patients A, B, C and D in these reasons for decision. The non-publication order extends to publication of the names of the mother and daughter of Patient B, referred to as Mother B and Daughter B.

3 The parties may, in a second-stage hearing at a date to be fixed by the Registrar, make oral and written submissions as to the appropriate consequential orders following these findings, including as to costs.

The Complaint

4 For ease, the Complaint is annexed to these reasons for decision and marked "Annexure A".

5 Complaint One is of unsatisfactory professional conduct within the meaning of the National Law, and concerns four patients, referred to as Patients A, B, C, and D in these reasons for decision. In essence, the issues traverse matters pertaining to consent and provision of information, clinical concerns, and post-operative care and advice.

6 Complaint Two, also of unsatisfactory professional conduct concerns alleged breaches of the Therapeutic Goods Act 1966 (NSW) in 2010-2011 - that is, alleged receipt and supply of restricted substances (Schedule 4 drugs) in circumstances where the practitioner was not legally entitled to do so.

7 Unsatisfactory professional conduct is also pleaded in Complaint Three in relation to allegations of improper and unethical conduct relating to the practice of the practitioner's profession. The complainant claims that the practitioner has effectively menaced or threatened one of its expert witnesses, by way of calls and text messages that were harassing due to their persistence, frequency, and nature.

8 Finally, the HCCC brings Complaint Four of professional misconduct, either on the basis of having engaged in conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or having engaged in cumulative acts of unsatisfactory professional conduct so as to amount to conduct justifying such suspension or cancellation of registration to practise.

9 It must be stated at the outset that the four complaints were vigorously defended by the respondent. During the course of directions hearings the Principal Member foreshadowed that the Tribunal would latterly be making directions requiring the parties to submit a statement which indicated the agreed and disputed matters. It transpired that no such direction was made as there were no real points of agreement between the parties. Even at final submissions the practitioner conceded only two of the forty-two particulars, and those concessions were qualified.

10 Further, it must be said that much of the respondent's case was argued from the perspective that the derivation and realisation of the Complaints being brought to the Tribunal represented a 'witch hunt'. That is, the practitioner's view could be summarised that the HCCC preferred the training and methods of the discipline of orthopaedic surgeons to those of podiatric surgeons. He put throughout the hearing the primary argument that orthopaedic surgeons viewed podiatric surgeons with disdain and disrespect, whereas, the training and methodology of podiatric surgeons was infinitely superior as it related to foot surgery as a discrete specialty. Indeed, throughout the hearing it was difficult to steer the practitioner to address the matters particularised, as this theory of the case was so entrenched. At the close of proceedings the practitioner's view persisted that he had not done anything wrong across the span of matters in the four complaints.

Practitioner's background

11 The practitioner completed a Bachelor of Applied Sciences (Podiatry) in 1985 at La Trobe University, followed by a Graduate Diploma of Podiatry at the same university in 1996.

12 In 2003 the practitioner completed a Masters of Podiatry at Curtin University.

13 Dr Bours' resume states that he completed a residency in the United States of America in Greenville North California (the details were not available to the Tribunal).

14 In 2006 the practitioner met the requirements for a temporary license to practise podiatry under supervision in the state of North Carolina.

15 In February 2007 the practitioner met the requirements for fellowship to the Australasian College of Podiatric Surgeons.

16 Dr Bours provided within his materials certificates of attendance and completion for various professional development activities and achievements in the area of foot and ankle surgery.

17 The practitioner was a board member of the Australian Podiatrist Association (NSW) between 2000 and 2009. He was a board member of the Australian Podiatry Council between 2003 and 2005. Between 2007 and 2010 he was on the board of the Australasian College of Podiatric Surgeons.

18 At the time of the matters that are the subject of this complaint, and to the time of the hearing, the practitioner was working within his own well-established private practice as a podiatric surgeon. The details of his private enterprise were considered by the Tribunal. A detailed employment history was not provided, but it is understood that the Dr Bours has been a private practitioner in podiatry, and latterly, in podiatric surgery, since 1985.

19 Conditions were imposed on the practitioner's registration following a hearing of the Podiatry Council on 17.02.2012. These conditions require review of consent processes to ensure they align with the 'Professional Standard: Informed Consent' which is published by the Australasian College of Podiatric Surgeons. Secondly, the practitioner is required to provide a range of information to any patients who are candidates for minimally invasive surgery (MIS), with a stipulation that patients sign a document to acknowledge that the mandated disclosure procedures have been fulfilled. Thirdly, such documents are to be sent by the practitioner to the Podiatry Council monthly. Finally, there are conditions requiring six monthly practice audits.

LAW

20 The enactment of the Civil and Administrative Tribunal Act 2013 (NSW), (the NCAT Act) abolished the Podiatry Tribunal effective 31 December, 2013. The Tribunal's functions were taken over by the New South Wales Civil and Administrative Tribunal (NCAT). In accordance with Schedule 1, Part 2, Division 3, Clause 6 of the NCAT Act these proceedings can be regarded as "unheard proceedings". Clause 7(3)(b) provides that the provisions of any Act, statutory rule or other law that would have applied to or in respect of the proceedings had this Act and the relevant amending Acts not been enacted, continue to apply.

21 Accordingly, pursuant to the transitional provisions in the NCAT Act, the relevant legislative provisions remain those in the Health Practitioner Regulation National law (NSW) No 86a.

22 The Tribunal is charged under s.4 of the Health Practitioner Regulation National Law ("the National Law") to exercise its functions having regard to the objective and guiding principles of the national registration and accreditation scheme set out in section 3. For the purposes of ease and clarity the relevant objectives and guiding principles are extracted below:

Section 3:

(1) The objectives of the national registration and accreditation scheme are:

(a) to provide for the protection of the public by ensuring that only practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; and ...

(e) to facilitate access to services provided by health practitioners in accordance with the public interest; and

(2) The guiding principles of the national registration and accreditation scheme are as follows-

(a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way; ...

(c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of appropriate quality.

3A Objectives and guiding principle [NSW]

In the exercise of functions under NSW provision, the protection of the health and safety of the public must be the paramount consideration.

23 The jurisdiction of the Tribunal is protective rather than punitive, and such protection runs to both the public and the profession. (HCCC v. Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at [637D and F]; HCCC v. Gillett [2007] NSWNMT 7). The protection of the public encompasses deterring the individual practitioner from repeating the misconduct, as well as acting as a general deterrent to others from behaving similarly (see, for example, NSW Bar Association v. Hamman (1999) NSWCA 404 at [77]).

24 In Re Dr Parajuli [2010] NSWMT 3 the Tribunal extrapolated that in exercising its functions under the Act for the paramount purpose of protecting the health and safety of the public, it may consider five matters concerning such protection:

(a) Any need to protect the public against further misconduct by the practitioner;

(b) The need to protect the public through general deterrence (of other practitioners);

(c )The need to protect the public by reinforcing high professional standard and denouncing transgressions;

(d) The maintenance of public confidence in the profession;

(e) The desirability of making available to the public any special skills possesed by the practitioner.

Unsatisfactory professional misconduct and professional misconduct

25 Complaints One, Two and Three allege that the practitioner is guilty of unsatisfactory professional conduct according to s.139B of the National Law, the relevant sections being:

s.139B

(1) "Unsatisfactory professional conduct" of a registered health practitioner includes each of the following-

a)Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.

...

l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.

26 Complaint Four alleges that the practitioner is guilty of professional misconduct under s.139E of the National Law:

s.139E. For the purposes of this Law, "professional misconduct" of a registered health practitioner means-

(a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or

(b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.

The onus and burden of proof

27 The burden of proof is upon the complainant to the civil standard of proof. That is, the complainant must prove on the balance of probabilities that the subject matter of the complaints against the respondent are established. Due to the seriousness of the allegations and the gravity of the consequences, the relevant standard of proof is that enunciated in Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 CLR 336, that is, that the Tribunal must be comfortably satisfied that the matters in the complaint have been established

28 The requirement for the Tribunal to be 'comfortably satisfied' does not import a third standard of proof hovering somewhere between the civil and criminal standards. It does not imply requirement of proof to a higher standard than the balance of probabilities: Gianoutsos v. Glykis (2006) 65 NSWLR 539 at 547-9, applied by the Medical Tribunal in In re Dr Suman Sood [2006] NSWMT 1 at 10. The standard referred to in Briginshaw is concerned with the quality or sufficiency of the evidence necessary to discharge the civil standard, rather than creating heightened standard of proof.

29 In accordance with authority, the Tribunal must make findings for each particular, and then determine whether those findings amount to proof on the balance of probabilities of the complaint (Lucire v.HCCC [2011 NSWCA per Basten JA at [43], see also Medical Board of Australia v Judge Horeman-Wren & Leggett [2013] QSC 339).

PROCEDURAL MATTERS

Respondent's Objections to Expert Evidence

30 The Tribunal conducted five directions hearings in the months prior to the main hearing, with the objective of clarifying the issues in dispute. The Principal Member also took submissions on the respondent's objections to various expert witnesses and portions of expert evidence, and made rulings on same well in advance of the hearing proper. Essentially, objections were made that orthopaedic surgeons do not have the relevant expertise to comment on the practice of podiatric surgeons, and likewise for a general podiatrist. Secondly, the respondent objected to the reliance by the complainant on expert reports that had been obtained for the purposes of other proceedings under the Civil Liability Act 2002 (NSW).

31 The respondent's objections to the evidence of orthopaedic surgeons could be summarised as twofold - firstly, that orthopaedic surgeons don't regard themselves as peers of podiatric surgeons and are not well placed to give evidence as to "the standard reasonably expected of a practitioner of an equivalent level of training or experience", and secondly, to speak plainly, that there is a degree of professional snobbery from orthopaedic surgeons towards podiatric surgeons. The respondent submitted that there are procedures performed by podiatric surgeons that are not done in the same way by the orthopaedic surgeons. This, he claimed, rendered the evidence of the orthopaedic surgeons irrelevant and unhelpful.

32 The Complaint traversed a number of issues - from consent, risk assessment, provision of information concerning material risks, record keeping, consultation with other medical practitioners involved in the patient's healthcare, and post-operative care and plans, to matters of professional ethics and conduct. The Tribunal took the view that the evidence of the orthopaedic surgeons was admissible and of assistance. The Tribunal is very capable of giving evidence its appropriate weight and does not abdicate its judgment and allow it to simply be supplanted by the word of the expert witnesses.

33 Rulings were also made as to the admissibility of reports that had originally been supplied for the purposes of proceedings under the Civil Liability Act 2002 (NSW). Such evidence was not excluded in this matter on the basis of its origin in other proceedings. The Tribunal is capable of distinguishing between the parts of the evidence from negligence cases that are relevant and those that are not. Clearly, any evidence of breach of duty of care, and so on, does not necessarily equate to unsatisfactory professional conduct or professional misconduct under the National Law. However, there was the real possibility that such reports would deal with factual content directly relevant to these proceedings, and as such they were not excluded despite the objection of the respondent.

34 Some portions of otherwise admitted evidence were excluded, as was the totality of the evidence of a general podiatrist.

35 Finally, the respondent objected to the composition of this Tribunal, arguing that the two professional podiatrist members ought to have been podiatric surgeons, rather than general podiatrists.

36 The Tribunal in such proceedings is comprised of a presiding legal member, two members from the respondent practitioner's profession, and a lay member.

37 The National Law provides that the practitioner members of the Tribunal will be of the same division as the respondent. Section 165A(3) provides that "if a profession has divisions, at least one and, if practicable, both, of the members appointed under subsection (2)(b) must be registered in the same division of the health profession as the health practitioner or student the subject of the inquiry or hearing." There are no registration divisions for podiatry.

38 Podiatric Surgeons comprise a very small portion of the podiatry profession - around twenty-four nationally. The Podiatry Council refused the respondent's request, and was legally entitled to do so under the present National Law. Further, s.165A(3) refers to the issue of practicability. In this situation there is a very small pool of potential persons who could be podiatric surgeon representatives on the Tribunal. On one view the issues of familiarity and potential for actual or apprehended bias outweigh the benefit of having podiatric surgeons on the Tribunal.

39 The Tribunal took a literal interpretation of s.165A of the National Law in deeming that proper appointments were made to the Tribunal for the hearing of this matter. The respondent was advised that to press the matter further would require that it be tested as a point of law through application to the Supreme Court of New South Wales. The matter was not so pressed, and thus the Tribunal proceeded as originally constituted.

Two stage hearing

40 These reasons for decision do not consider consequential orders. It was determined during the course of the hearing that a second stage hearing would occur to allow the parties to make submissions as to the appropriate orders consequent on any findings (King v Health Care Complaints Commission [2011] NSWCA 353). A two-stage hearing is deemed appropriate due to the complexity of the issues and the evidence.

Self-Representation

41 The practitioner retained legal representation for the preparation of his case, however, he disengaged from his lawyers some two months prior to the hearing. He was self-represented at the actual hearing, assisted by a 'McKenzie Friend', who had been legally qualified for a year.

42 A difficulty arose flowing from the fact that the practitioner had refused to make a statement to the complainant in response to the Complaint. Of course, a respondent is entitled to take that position.

43 Although the practitioner examined and cross-examined witnesses during the course of the hearing, the Tribunal had to determine the most efficient and helpful manner of him giving his own evidence. The Tribunal denied his request that the McKenzie Friend be permitted to question the practitioner by way of evidence in chief.

44 This request was denied after consideration. The McKenzie Friend who assisted the practitioner throughout the hearing, Mr Sivasothy, was a recently qualified legal practitioner with a restricted practising certificate. He did not have a legal supervisor or any professional indemnity insurance. Although it was put that Mr Sivasothy would be conducting examination in chief as a friend rather than as a legal practitioner, the Principal Member refused to allow this. This refusal was on the basis that, as a legal practitioner Mr Sivosothy owed certain duties to the court or a tribunal. It would become unclear in proposed scenario whether Mr Sivasothy would still owe such duties to the Tribunal.

45 There is, of course, precedent for a court or tribunal giving leave for a non-legally qualified person to conduct the examination in chief. However, this situation is different, and runs the risk of placing Mr Sivasothy in an improper professional position, where he is, effectively using his legal training and experience to conduct the function of a lawyer in the hearing, but under the authority of an authorised non-legally qualified assistant with leave to question witnesses. The decision was therefore made in the interests of proper conduct and to protect Mr Sivasothy, a young practitioner, from being placed in a precarious ethical position. The Principal Member also consulted with a representative of the New South Wales Law Society on this matter.

46 The practitioner opted to then adopt the following documents as his statement such that the HCCC could cross-examine him on the basis of those documents :

• The transcript of the practitioner's interview by the HCCC which had been conducted under s.34A of the Health Care Complaints Act 1993 (NSW) dated 22 December, 2011 (CV 5, Tab 85)
• The transcript of the practitioner's interview by the HCCC under s.150 of the National Law dated 17 February, 2012 (CV 5, Tab 92)
• Statement of Agreed and Disputed Facts, compiled by the practitioner only (Exhibit E).

HCCC SUBMISSIONS REGARDING PRACTITIONER'S RECORDS

47 The complainant makes an important submission at the outset concerning the reliability of the practitioner's notes and the degree to which the Tribunal should rely upon same in making findings of fact.

48 In order to make findings in relation to the particulars, the Tribunal, in many instances, first needs to determine what facts it finds established to the requisite standard. The parties are at odds with respect to all of the particulars, with the exception of particulars one and two of Complaint 2, and particulars one and two of Complaint 3. The HCCC puts that the practitioner relies largely on his clinical notes to support his version of events, submitting that the Tribunal should find the practitioner's clinical notes (including some correspondence) to be "at the very least, unreliable, and that the Tribunal could not use these in order to assist it in determining which version of facts it should prefer." That is, the complainant puts the overarching proposition that due to the inconsistencies and irregularities in the notes that were unearthed during the hearing, the Tribunal should not prefer the practitioner's version of events where such is supported by said notes and correspondence.

49 The complainant's submissions make the following observation concerning the practitioner's record keeping:

"Dr Bours stated that he made his notes at the time of the consultation (T580, L25), also stating that the 'history' part of the file was a part of a one that could be constantly updated (T579, L18). He said that any other revision would show as a separate set of notes under a fresh date and time stamp, with an indication of "modified" or "revision" (T581-2). In fact the printed notes do not show any indication of "modified" or "revision" and there is no time stamp on the notes. The respondent indicates that these words only show up on the screen (T829, L13), but there is not other evidence before the Tribunal to support that contention."

50 It is noted that the complainant has not particularised concerns that the notes of the respondent have been altered or added to later in an effort to protect his position in these proceedings. However, the Tribunal was convinced that there were many inconsistencies in the clinical notes that were only explicable on the evidence before it that the notes had, indeed, been altered to protect the practitioner's position. While the practitioner, by his own admission, is not diligent with paper work, there are entries in the notes concerning a number of the particularised alleged departures which have a level of detail that is inconsistent with the balance of the notes, appearing to give a cosmetic blush to his version of the facts. Further, on several occasions, dated notes and correspondence contain information which, at the time of writing, was not available to the practitioner.

51 The Tribunal regards the practitioner's records with caution, and weighed this when considering which version of events was to be preferred.

52 The balance of the parties' submissions will be considered as they relate to the particulars concerned throughout these reasons for decision.

EVIDENCE

53 Documents: The complainant tendered into evidence without objection six volumes of materials, as Complainant's Volume CV1-6. The Respondent tendered into evidence without objection four volumes of materials, as Respondent's Volume RV1-4.

Exhibits A - M were also tendered into evidence without objection.

WITNESSES WHO GAVE EVIDENCE AT THE HEARING

Dr Paul Bours, Respondent

For the Complainant:

Mr Trevor Tillotson, Podiatric Surgeon, Expert Witness, Patients A, C & D

Mr Andrew van Essen, Podiatric Surgeon, Expert Witness, Patient B

Associate Professor Jennifer Bryant, Podiatrist, Podiatric Surgeon, Expert Witness, Patient B

Dr David Lunz, treating doctor for Patient B

Dr Martin Sullivan, Orthopaedic Foot and Ankle Surgeon, treating doctor for Patient A, B & C

Dr Kuo, Orthopaedic Foot and Ankle Surgeon, treating doctor for Patient D

Dr Munro, General Practitioner to Patient B

Patients A,B,C,D

Daughter B, Mother B

For the Respondent:

Dr Gilheaney, Podiatric Surgeon, Expert witness

Dr Salerno, Podiatric Surgeon, Expert witness

Dr Ozcan, Podiatric Surgeon, previous Registrar to Dr Bours

RN Hardy, Surgery Nurse for Dr Bours

Abbeviations:

T = Hearing Transcript; L = Line

54 Documentary and oral evidence will be considered in these reasons for decision as and when it is relevant to the matters particularised in the Complaint.

COMPLAINT ONE

55 Particular 3 was withdrawn by the complainant during the hearing.

Patient A Generally:

56 Patient A came to be under the surgical care of the practitioner after he was referred to him by a general podiatrist, Ms Joan Grassano, with whom he had had one consultation. Although there is some question about the exact date, it would seem that the first consultation with the practitioner was on or around 28 February, 2009, when Patient A presented seeking advice regarding pain in his great toes. At the first consultation the practitioner recommended surgery on both feet.

57 A second consultation took place on or around 9 April, 2009.

58 The surgery was performed on both feet on 1 July, 2009.

59 There is some question about the date of signing the consent form - that is, whether it was signed on 8 April, 2009 or 1 July, 2009.

60 Patient A worked as a gardener, and this was not the first time he had sought advice concerning problems with his feet. The medical reports in evidence indicate that he attended Dr Negrine, Orthopaedic Surgeon specialising in foot and ankle surgery, in February 2005. In his follow up letter to Patient A's General Practitioner dated 18 February, 2005 (CV 1, Tab 10) Dr Negrine reported that he observed:

"...an obvious hallux rigidus, worse on the left than the right. He has pain and tenderness interestingly on the plantar surface of the left great toe. His range of motion is an arc of approximately 40 degrees on the left and 70 degrees on the rights...

This is a difficult problem in a young man. I have recommended initially the non-surgical measure - insoles in the shoes, Glucosamine, intermittent anti-inflammatories...

At [Patient A's] age and stage, all surgical options are bad and the surgery should be delayed until he cannot walk."

61 Patient A attended another orthopaedic surgeon in 2008, Dr David Lunz, complaining of pain in both great toes for the last three years. In his letter to the referring doctor, dated 2 June, 2008 (CV 1, Tab11), Dr Lunz reported stage II hallux rigidus, a disorder of the joint located at the base of the big toe. Dr Lunz also reported his recommendations as to footwear and orthoses, considering that if symptoms worsened Patient A could consider a dorsal cheilectomy, a procedure involving removal of the painful prominent bone spurs on the top of the toe joint. If pain were to be unremitting, consideration could be made of having both joints fused, however, Dr Lunz did not consider his symptoms yet severe enough to warrant surgery.

62 At the first consultation Patient A gave the practitioner his medical history and Dr Bours advised he could perform an operation that wouldn't restrict him as much as the one that had been suggested by Dr Lunz, Orthopaedic Surgeon (T476, L17-21).

63 Chief among the issues in dispute concerning Patient A are the following:

• That the practitioner did not ever tell the patient the name of the surgery, and that the consent form contains additions of extra procedures that were noted on the form after it was signed.
• That the practitioner never told the patient that he could not smoke in the lead up to the surgery and for some time after.
• That the practitioner did not ever tell the patient that his toe would be shorter as a result of the procedure.
• That the patient did not follow post-operative instructions. The practitioner asserts that the patient reported going to the casino to gamble (meaning that his legs were not being elevated for extended periods, contrary to medical advice), and that the patient drove before the post-operatively recommended time.
• That post-operative concerns and pain were not taken seriously by the practitioner.

64 The practitioner performed surgery on Patient A (both feet) on 1 July, 2009. To depart slightly from the medical terminology, the procedures on each foot involved removing a piece of the metatarsal bone to realign the bone and relieve pressure on the joint, as well as fusing the big toe (interphalangeal) joint.

65 Patient A attended post-operative consultations at one, three, four, six, and ten weeks, and then at four months. He spoke to the practitioner on the telephone eight weeks after the surgery.

66 The clinical notes for 21 July, 2009 indicate that Patient A had stubbed his toe and was in increased pain.

67 Patient A described being in a great deal of pain during the weeks after the surgery, especially in the right foot. The practitioner told him that there was a haematoma and squeezed an amount of old blood from the wound.

68 Patient A describes repeatedly reporting high levels of pain to the practitioner, and that the pins used to fuse the joints were coming out of the bone into the flesh by about half a centimetre, causing high discomfort (Annexure to Statement 19.03.2013, CV1, Tab 3). Patient A was of the view that the practitioner was dismissive of his concerns as to the level of pain and the displacement of the pins.

69 Patient A also reported that three months' post-operatively the practitioner told him that the toes had 'fused' and that he should start running and exercising. This proved very painful (Annexure to Statement 19.03.2013, CV1, Tab 3).

70 Radiological measures taken on 2 November 2009, four months after the surgery, revealed that there wasn't radiological fusion:

"The prior surgery is noted with multiple orthopaedic pins and remnants in the tissues but no joint effusion detected..." (X-ray report of Dr Kenneth Sesel, CV1, Tab 7).

71 Much time was spent in the hearing evidence on the difference between radiological fusion and clinical fusion, with the practitioner's position being that there can be clinical fusion without it showing on an X-ray.

72 Ultimately Patient A lost confidence in the practitioner and consulted with an orthopaedic surgeon, Dr Sullivan, in January 2010.

73 Dr Sullivan proposed revision surgery. The plan was a revision arthrodesis of the IPJ joint of both toes and removal of the K wires, which were the means of fixation in the surgery performed by Dr Bours.

"...if you have two joints and you are trying to fuse them sometimes they don't fuse and you have to basically take down - in other words you don't get bone to bone contact so you have to remove all the fibrous tissue, usually it's fibrous tissue, remove that and then try and achieve an arthrodesis so you have to basically do it again, redo it..." (Dr Sullivan, T522, L16-20).

74 The revision surgery was performed by Dr Sullivan on 22 February, 2010.

75 The Tribunal found Patient A to be a reliable witness who was prepared to make concessions against the HCCC's case at times. He had undergone many surgeries as the result of various sporting injuries, and described himself as having a very high threshold of pain. The evidence of Patient A was helpful to the Tribunal, and his testimony did not seem tainted by venom against the practitioner.

Particular 1 - Did the practitioner fail to give sufficient information to understand the procedures?

76 Much time was spent in the hearing in differentiating between types of procedures, and whether it was appropriate to change the nature of the procedure inter-operatively.

77 In oral evidence Patient A gave his understanding of the proposed procedures thus:

"...he'd fuse the front joint of the great toes. He mentioned about removing a wedge of bone on the side so it would bring the toe out a little bit which will help prevent the problem occurring in the future and he said he'd remove any spurs that may have grown on the joints..." (T476, L24-27)

78 Patient A's evidence was that he had never heard the term "bunionectomy" until he read it on the consent form on the day of the procedure (T477 lines 4-8), a fact he mentioned to the nurse attending him (Annexure to Statement of Patient A dated 19 March, 2013, CV 1, Tab 3). However, in denying that the word "bunionectomy" was ever used, Patient A conceded in oral evidence that the practitioner gave a clear understanding of what he intended to do with the toe. (T499, L113-118).

79 There were discrepancies between the clinical notes of the practitioner and the referral for admission / consent form signed by Patient A.

80 The consent form dated 8 April refers to a Reverdin-Green procedure. Dr Bours' typed file notes of 9 April refer to a Green-Watermann with Valenti (CV1, Tab 6, p.7). This inclusion of Green-Watermann matches the operation report description but is at odds with the consent signed by the patient. The practitioner disagreed with the proposition put to him by the HCCC that he filled in the typed notes at a later date after he started to have problems with the patient (T590, L42-44). The Tribunal regards the practitioner's file notes for Patient A as being of dubious integrity and replete with inconsistencies / improbable entries.

81 It was clear from the colour copies of the consent form that the words "& IPJ arthrodesis both feet" and "& IPJ fusion both feet" and the item numbers "49851 x 2" had been added in another pen, presumably after it had been signed by Patient A.

82 That aside, the evidence of Mr Tillotson, expert Podiatric Surgeon for the complainant, was that there is not a great deal of difference between the two procedures, that they are "slightly different but the outcomes are the same." Further, he added that is "very common to change a procedure slightly ... to try to improve the outcome." (T273-4, passim). Mr Tillotson went on that the imperative is not necessarily to be specifically talking about different procedures, but the need for the practitioner to discuss with the patient the possibility that the procedure may be modified during the course of the operation to improve the outcome, and this fact should be advised prior to surgery. (T274, L 28-44).

83 In weighing all of the evidence the Tribunal is comfortably satisfied that Patient A had a good general understanding of the procedures proposed for his feet and that the practitioner did not fail to provide sufficient information to Patient A to enable him to understand the procedure to be performed. Accordingly, particular one is not proved on the balance of probabilities.

Particular 2 - Did the practitioner fail to inform patient that his big toes would be shortened?

84 This particular concerns the practitioner's alleged failure to tell Patient A that his great toes would be shorter as a result of the surgical procedures.

85 There is little controversy about this particular, which may be dispensed with readily. The Tribunal finds this particular proved on the balance of probabilities.

86 Regardless of whether Patient A would have had a problem with toe shortening, it seems clear on the evidence that he was not apprised of that possibility prior to the surgery.

87 The practitioner's evidence was that he had drawn a picture on the x-ray packet for Patient A, indicating what he would be doing. It would seem that the practitioner's position oscillated between denying toe shortening, and an assertion that, knowing what the procedure was to be, Patient A must have known that his toe would be shortened as a result.

88 Patient A's evidence was that when he mentioned the toe shortening the practitioner responded, "I didn't think you'd mind," to which Patient A replied, "I guess not." (CV1, Tab 3 Annexure to Statement of Patient A, dated 19.03.2013).

89 In the HCCC interview dated 22 December, 2011 (CV 6, Tab 85, p.19) the practitioner said that Patient A mentioned the shortened toe three weeks post-operatively but that he (Patient A) didn't think it was an issue. However, the practitioner offered that, if it was possible, he would attend to it later at no charge. The practitioner's statement makes it quite clear that the conversation about the shortened toe only came up post-surgery. During the hearing the practitioner attempted to resile from that position with an argument that because he drew a picture on Patient A's x-ray envelope of what he intended to do in the surgery, Patient A must have deduced that the toe would be shorter.

90 In cross examination (T598-9) the practitioner refuted that Patient A didn't know about the toe shortening prior to surgery:

"A. The issue of a short toe only came up after...

...Q. You have heard [Patient A] say that he did not know that his first toe would be shorter as a result of the surgery before the surgery.

A.That's - that is incorrect. I drew, and he has admitted yesterday that I drew on his envelope what exactly I was going to do, and I'd block out - okay, there's a wedge that I take out which means it's shortening the bone of the metatarsal and a screw is drawn - or screw or a fixation is drawn at his IP joint..

Q. You must have known that he didn't really understand, sir, because you offered to fix it up free of charge. Isn't that the real position?

A. No. I think you are absolutely drawing false assumptions and that's not fair."

91 Mr Tillotson, Podiatric Surgeon expert witness for the HCCC stated that the "effect of the Green-Waterman procedure would be shortening of the first metatarsal relative to the other lesser metatarsals" (CV4, Tab 58, p.8), and that failure to advise of this prior to the surgery would fall significantly below the expected standard of practice (T275, L 43).

92 The practitioner's expert podiatric surgeon witness, Dr Salerno, gave evidence that if there was to be an obvious discrepancy in big toe length following an operation that more detailed discussion would be entered into prior to the operation, even in relation to a thirty-four year old male. If cosmesis was important or if the discrepancy in toe lengths was going to be obvious it would be discussed, however, Dr Salerno stated that he would mention, but might not discuss, it with an older person (T791, L1-20).

93 It is the evidence of Patient A that it was a friend who pointed out to him the shortening of his toe. The HCCC submits that this is evidence that it was sufficiently shorter such that it was noticeable to others. The Tribunal accepts this submission.

94 The Tribunal deems that there is a strong possibility that the practitioner wrote letters to cover his position in this matter. Detailed letters were written to the referring podiatrist, Ms Grassano, whom Patient A had only seen on one occasion (CV1, Tab 6, pp.16,17,19, 20). The letters dated 6 April and 13 April appear unusually detailed given the surrounding circumstances, and happen to hit directly on the matters particularised in this Complaint with respect to disputed information allegedly given to the patient pre-surgery and disputes which later unfolded. Although they pre-date the surgery, there is no evidence of when they were received. The HCCC contended in cross examination of the practitioner and in submissions that the letters had been written much later for self-serving purposes, and had been backdated. The practitioner denied this proposition. In cross-examination Ms McNaughton put to the practitioner that much of what appears in the letter to Ms Grassano of 6 April, 2009 actually first appears in the patient's medical records under the consultation notes for 9 April, 2009. That is, the information that was recorded in the letter of 6 April, 2009 was not purportedly obtained from Patient A until three days later. The practitioner's answer to questioning as to how this might have occurred was that he possibly wrote the letter based on paper notes, and that he could not remember. (T587, L28-44)

95 A third letter to Ms Grassano is dated 2 July, 2009. It is noted that, unusually, a fourth letter was written to Ms Grassano on 3 November, 2009, the day after Patient A's foot was x-rayed at the request of his general practitioner. Although the Tribunal is not in a position to verify the dates upon which those letters earlier letters were actually written and sent, it attributes them little weight in the question of whether or not Patient A was apprised prior to surgery of the fact that there would be toe shortening as a result of the surgery.

96 The Tribunal is comfortably satisfied to the requisite standard that Patient A did not know that toe shortening would be a result of the surgery. Whether this bothered Patient A or not is not the point of particular 2, which we find proved on the balance of probabilities.

Particular 4 (particular 3 withdrawn) - did the practitioner fail to give adequate information re risks and post-surgical matters?

97 The HCCC agitates the complaint that the practitioner failed to provide Patient A with adequate information regarding risks, potential complications, recovery time, the degree and duration of pain, the disability and discomfort that would flow from the surgery, and the period of time during which the patient would be unable to walk without discomfort, wear normal footwear or return to work and normal activity.

98 Patient A was adamant that the practitioner did not at any time tell him that he should cease or reduce smoking, or indicate that there was an impact on healing and recovery time for smokers. It was Patient A's evidence that the first time he had ever been told this was when he attended the orthopaedic surgeon, Dr Sullivan, for a second opinion. He claimed that this information was a surprise to him as he had undergone many surgeries in the past and he had never received this instruction from the practitioner, or, indeed, any other surgeon. It is for that reason, he claimed, that he is certain that Dr Bours did not mention this to him at any time (T477).

99 It is noted that the records of the practitioner of 09.04.4009 refer to an instruction to cease or reduce smoking:

"Admits to smoking: ½ pack to full.... Explained about smoking and non-union; issue with bone healing and smoking. Request to stop smoking 2 weeks before and at least 3 weeks after Sx. Agreement noted." (CV1, Tab 6, pp.6-7)

100 This brings into play the question of the reliability of Dr Bours' clinical notes. Although the notes are very detailed, and happen to hit on key matters in issue in the Complaint, the Tribunal is not confident that the notes were written contemporaneously.

101 Patient A reports that he smoked three to four cigarettes a day at the time he consulted the practitioner. The notes state he smokes half a packet a day. The notes record that Patient A was not wearing the proper therapeutic boots three weeks after the surgery, while the patient is clear that he wore them for a full six weeks. Further, the notes refer to the need to wear special steel capped boots in his work as a gardener, while Patient A was very clear in oral evidence that he never has worn steel capped work boots, and has never needed to do so.

102 The notes contain a clear error which indicates that Patient A was first seen at rooms at Darlinghurst (CV1, Tab 6, p. 6). The practitioner was adamant during the hearing that this was correct, and based this assertion on photographs of Patient A's feet where the floor of the Darlinghurst rooms could be identified. Patient A was certain he had only ever attended that premises for the actual surgical procedure. As it transpired through the hearing the practitioner conceded that those photographs were actually taken on the day of the surgery, which was performed at Darlinghurst, and the only time that Patient A ever went to those premises. That is, the first consultation was not, indeed, at Darlinghurst, as the clinical notes indicated (T578, L10-14). Dr Bours' explanation for this was that he must have taken paper notes at the first consultation and there had been some confusion in the attachment of a paper note to an electronic file. The explanation offered did not make sense.

103 The Tribunal does not accept this version of events. The curiously detailed file notes which were said to have been completed contemporaneously contain the incorrect surgery location. It would seem unlikely that, when writing the notes at the time or around the time of the consultation that the practitioner would incorrectly record the location of the consultation. This raises the real possibility that the detailed notes were completed at some time later, cross-referenced with the photos which the practitioner erroneously thought were taken at the first consultation, possibly for self-serving purposes. For this and other reasons, the Tribunal does not accept the clinical records as proof of information given to Patient A at the relevant time.

104 It is noted that this is also cited in the letters to Ms Grassano, podiatrist:

"I have mentioned the need to give up smoking should he consider surgery and he has mentioned he has given up beforehand for years, only to take it up again." (6 April, 2009, CV1, Tab 6, p.20)

"I have again requested he refrain from smoking 2 weeks prior and for at least 3 weeks after surgery to minimise complications." (13 April, 2009, CV1, Tab 6, p.19)

105 As aforementioned, the Tribunal also regards the letters to Ms Grassano with suspicion. Although they are dated, there is no evidence of when they were actually sent or received. The level of detail which coincides to matters of dispute is unusual, particularly in communications with a general podiatrist who only consulted with Patient A once.

106 The Tribunal is comfortably satisfied that the practitioner did not warn Patient A about the dangers of smoking before or after the surgery.

107 Patient A had undergone numerous surgeries for a young man, including two knee reconstructions, a shoulder reconstruction, around ten knee arthroscopies, and a tendon removed from the hand. He explained in oral evidence that he had been highly motivated to recover, but he had never experienced post-operative pain like that experienced after the foot surgery. He was never told that it would be that painful (T486, passim). There is little evidence as to what he was actually told about recovery time and the degree or pain, but his evidence is clear that the period of recovery and the degree and persistence of pain was way beyond what he expected. Patient A explained in oral evidence, speaking of the practitioner:

"ever since you performed that operation, the initial operation, I have had pain on the ball of my foot on both sides which I've never had before the operation and I still don't - no-one has ever really told me what that was. I still don't know why I have pain. I don't know if it because of the shortening of the toe or whether, but I've had a consistent pain, which has died down now after four years or so, but it's still there..." (T500-501).

108 The practitioner relies essentially on his clinical notes, letters to Ms Grassano, and Patient A's signature of the consent form in relation to this particular.

109 In citing the record of interview in the proceedings leading up to this hearing, the following was elucidated in cross-examination of the practitioner:

Q. You say at page 20 of this 17 February proceedings, about halfway down the page almost exactly, in the middle of the bit attributed to you, you say:

"These patients, I feel maybe I should have walked them through lower expectation and higher delivery rather than telling them - rather than letting them believe that because of the small incisions their healing would be a lot faster."

A.Fair enough

Q. So you agree that you might have told them that their healing would be a lot faster?

A. Possibly, yes. I am a positive person, so maybe that's to my detriment.

110 Patient A is a young man who, at the time of consulting the practitioner in relation to his foot pain, was no stranger to orthopaedic surgeries. Given the issues as to credit arising from the practitioner's medical notes, and the Tribunal finding Patient A to be a credible and reasonable witness, the Tribunal prefers the evidence of the latter that no warnings against smoking were given. Further, the Tribunal is comfortably satisfied that insufficient realistic warning was given by the practitioner as to the likely length of recovery time, the persistence and severity of post-surgery pain, the disability and discomfort that would result from the surgery and, the length of time that Patient A would not be able to walk without discomfort, wear normal footwear or return to work and normal activity.

111 As regards the risks and potential complications of the surgery, inasmuch as they relate to adverse outcomes which may unfold as the result of such surgery, Patient A's evidence is that the risks of non-fusion and infection were discussed at the second consultation (T476-7). The Tribunal finds that the information given to Patient A was sufficient with respect to the possibility of non-fusion and infection, but lacking in such matters and potential dislodgement of the pins.

112 Particularly relevant is the time required for recovery and return to pre-morbid activity levels. Such matters are of great importance, particularly for employment, family commitments, and leisure activities. We find on the evidence the practitioner did not give realistic projections about these vital considerations.

113 We determine that the practitioner failed to provide Patient A with adequate information about the matters referred to in particular 4, which is proved on the balance of probabilities.

Particular 5 - Was the consent form inadequate?

114 This particular alleges that the practitioner utilised a consent form which, when completed by the practitioner, lacked information about the specific risks of the procedures to be performed and failed to clearly identify the procedures to be undertaken.

115 There are a few key issues concerning the consent form. Firstly, whether it was understandable by the patient, secondly whether it had been altered after it was signed, and thirdly, whether it should have contained information about specific risks of the procedures to be performed.

116 It must first be said that a consent form is evidence of informed consent, but the form itself is not the substance of consent. That is, a signature on a consent form does not amount to informed consent. Informed consent is obtained by a process whereby a person with legal capacity is presented with sufficient information to understand and weigh the advantages and disadvantages of the proposed treatment and make a decision as to whether to proceed. This dialogue should include information about the material risks and potential side effects and whether the procedure is conventional or experimental. Naturally, any decision to proceed with surgery must be free from undue pressure. In sum, the process of obtaining informed consent is a deliberative one, involving provision of relevant information, both positive and negative.

117 That said, particular 5 is concerned with the nature of the document, and possible deficits in its execution.

118 The evidence of Patient A was that he had never heard the term "bunionectomy" until he saw it on the consent form on the day of the surgery (T478, L40ff). Further, he claimed that the words "IPJ arthrodesis both feet" were not on the form when he signed it. It is apparent from the document that part of the form has words written in a different pen, and the HCCC submits that this is consistent with it having been written in at another time. However, semantics aside, it was his evidence that he understood the nature of the proposed procedure, albeit that there were deficits in the provision of information about potential risks and complications, and the nature and duration of recovery.

119 The expert witness of the HCCC, Mr Tillotson, described the consent form as lacking in clarity, very messy to the point of being unreadable in parts, and inadequate in format. Mr Tillotson claims that it would be difficult for the patient to understand, and that the written part of the consent process is vital pre-surgically when often the nervousness of the patient may render verbal communication "unheard" (CV4, Tab 68; T481, L7-30).

120 The Tribunal is of the view that, whether or not it is best practice, many surgical consent forms refer to procedures in terminology which may not be easily understood by the patient. Typically, too, consent forms do not contain an exhaustive list of specific risks of the procedures. It is of concern, however, that this form shows additions in what is clearly a different pen, suggesting that the document was altered after signature.

121 On balance, we find that this particular fails. The biggest potential problem with the consent form, whether or not it is of 'gold standard', concerns the allegation that the form was amended after it was signed, by way of the practitioner adding an additional procedure name. However, the Tribunal cannot be comfortably satisfied that the additions, even though they were in a different pen, were not made prior to signature.

Particular 6 - Did the practitioner fail to obtain informed consent?

122 Particular 6 is proved to the comfortable satisfaction of the Tribunal.

123 Failure to obtain informed consent is agitated by the HCCC on the basis of particulars 1, 2, 4, and 5 concerning Patient A. The lack of information about the shortening of toes, and the potential post-operative pain and difficulty, and delayed recovery time are particularly significant in this finding.

124 On the basis that we find particulars 2 and 4 proved, we determine that the practitioner failed to obtain informed consent from Patient A. An agreement to have surgery can only represent the fullness of informed consent when it is preceded by the type of balanced and open disclosure and dialogue referred to in above. Without such, the potential for informed consent is blocked - it cannot be formed because it lacks the necessary parts to exist.

Particulars 7 and 8 - Did the practitioner give inadequate post-operative advice, and did he respond adequately to post-operative complaints?

125 It is convenient to deal with these particulars together. Particular 7 is concerning the allegation that the practitioner failed to provide Patient A with an adequate level of post-operative advice relevant to the procedures, and particular 8 alleges failure to adequately respond to the complaints of post-operative pain regarding the fixation pins used to fuse the joint of his right great toe.

126 The Tribunal considers that the written post-operative instruction sheet given to patients immediately after surgery is adequate. Mr Tillotson, expert for the HCCC, agreed on this general point.

127 Post-operative advice goes beyond the initial instructions for the days after surgery. Beyond the initial stages, it would seem that the practitioner was willing to see his patients regularly and had the practice of involving other practitioners, such as physiotherapists, as may be clinically indicated.

128 The HCCC submits that the practitioner's instruction to Patient A to commence exercising when he was unable to walk without a high level of pain, especially in the right foot is an indicator of the inadequate post-operative advice (CV1, Tab 3; CV1, Tab 4, [7]).

129 The practitioner submits that Patient A did not follow post-operative instructions and that he had done certain activities that compromised his aftercare. For example, the practitioner argued that Patient A spent time gambling at the casino, preventing him from having his feet appropriately elevated. In oral evidence Patient A denied having gone to a casino any time around the relevant period, and that they only gambling he had done was on the computer from home, which could be done with his feet elevated. The Tribunal believes Patient A's version of events on this point.

130 Patient A complains that the practitioner seem to disregard his ongoing reports of severe pain, and was somewhat dismissive about the pins protruding from his foot.

131 The practitioner also submits that in response to Patient A's complaints about pain from the pins he arranged an x-ray and offered to take out the K wire if it was a problem.

132 The essence of the patient complaint underlying both particulars 7 and 8 is that Patient A felt that the practitioner brushed off his complaints about pain and minimised the issue with the protruding pins. It would seem that Patient A would have liked the practitioner to acknowledge that the pain level was quite extreme and that there were potential problems with the surgery, rather than insisting for quite a while that all was fine.

133 The Tribunal finds with respect to particular 7 that the practitioner provided an adequate level of post-operative advice. There seems to have been a 'wait and see' approach with the pain, which possibly was not justified. It would seem that there were complications with the surgery, as well as delayed healing, which was not acknowledged by the practitioner.

134 However, we cannot know if the practitioner would have dealt with these post-operative issues appropriately as Patient A transferred his care to Dr Sullivan when he lost confidence in Dr Bours. This is a course of action to which he was perfectly entitled. The practitioner has no cause for complaint against Patient A for making this decision, or against Dr Sullivan for failing to send Patient A back to him for further review. The practitioner and Dr Sullivan clearly have some quite different philosophies around foot surgery and recovery.

135 The practitioner attended to Patient A regularly with appointments. He persisted in the belief that there would be recovery and proper healing in time. His fault was in not acknowledging the degree of difficulty experienced by Patient A, and the real possibility that the foot surgery had not been as successful as anyone would have liked.

136 On balance, the Tribunal cannot be comfortably satisfied that particulars 7 and 8 are proved.

137 In summary, the Tribunal finds particulars two, four and six established, being three of the seven particulars agitated concerning Patient A.

PATIENT B

Patient B generally

138 Patient B, at the time of first consulting the practitioner, was a forty-five year old woman. She consulted him for advice concerning foot deformities on both feet. She discovered him through internet searching and attended the first appointment on 16.06.2009.

139 By the time of the hearing Patient B was clearly extremely angry with the practitioner, and she did not hide this during the course of her evidence. Throughout the hearing she refused to address the practitioner with his preferred title of "Dr". Patient B, by her own admission, and as was apparent during the course of her evidence, is a very strong-willed and forthright person who speaks her mind plainly and is no stranger to becoming abusive in pressured situations. Her general practitioner ("GP"), Dr Munro, agreed on cross-examination that she was a demanding patient (T141, L41-2).

140 The Tribunal also received oral and written evidence from Patient B's mother (Mother B) and daughter (Daughter B). We found the evidence helpful to a point, but were mindful of possible effects of close family members discussing matters to such a degree that there is potential for versions of events to become blended. There were some aspects of Daughter B's evidence that assisted the Tribunal in resolving factual matters. The evidence of Mother B afforded the Tribunal little assistance.

141 However, Patient B tells of a time when there was no animosity towards the practitioner. She reported in oral evidence that she had been very impressed by him, describing him as good looking and charismatic. She really liked him and was very pleased with both his presentation and what he said he could offer by way of surgical management of her foot deformities.

142 Patient B had a history of Lupus, in lay terms, a chronic autoimmune condition that causes various tissues in the body to become inflamed. The inflammation can affect many different body systems, and the symptoms will depend on which tissue is affected at any given time. There was little in evidence about the nature of the condition suffered by Patient B, but it would seem that it affected her joints, with rheumatoid-like symptoms presenting.

143 She was diagnosed with Lupus at twenty-seven years of age, and developed side effects in her late thirties. Joint aches began and developed to foot deformities. She reports in her statement (29.09.2010, CV1, Tab 18) getting dislocated toes, hammer toes and "really bad bunions". Walking became extremely painful. Deformities appeared in her hands as well and she had undergone surgery on her them. Patient B attributes the deformities to rheumatoid arthritis, which is a side effect of Lupus.

144 It was common ground that, at the time Patient B first consulted the practitioner, the Lupus was said to have been in remission for some time and she had not received medical assistance or advice from a specialist medical practitioner for years. Patient B had, at some point in time, been under the care of an immunologist, Dr Elizabeth Benson, at Westmead Hospital. After Dr Benson retired in around 2004, Patient B was managed by her GP, Dr Munro, who had been her doctor for over twenty years. She had testing from time to time to check whether the Lupus was active. The Tribunal has no reason to doubt the evidence that when she first consulted the practitioner her condition was in remission.

145 In 2006 Patient B consulted Dr Lunz, an orthopaedic surgeon who was based at Prince of Wales Hospital. She reports that Dr Lunz advised her that her feet were "really bad", but that she should keep walking until she could no longer do so, and then he'd consider doing something surgically. Patient B's understanding of the problem that a surgical solution posed, from Dr Lunz's advice, was that she required surgery on both feet and that would necessitate her having her legs in a tourniquet for some five hours. The risk of a blood clot was very high, making death a possible result within the range of risks of the surgery. Patient B was unwilling to take the risk of such surgery, and Dr Lunz was not recommending she do so when he saw her in 2006.

146 In 2008, after struggling with pain, limited shoe choices, and an altered gait, Patient B began searching for some alternate treatment, taking us to the point where she came to seek the advice of Dr Bours.

147 She attended the first appointment, accompanied by her mother, on 16.06.2009. She reports that she took some X-rays and he checked her walking and her feet. Patient B advised him of her foot concerns and what Dr Lunz had said at her last consultation. The practitioner then advised her that a surgical solution was possible:

"...he explained that the method he uses is very different to what an orthopaedic surgeon uses. He explained it was 'wet surgery', and that he doesn't use a tourniquet. He told me there was no risk involved and that he injects the foot with adrenalin. He told me he uses minimal incisions and will take the joints out of the toes and that I would be wearing stilettos afterwards.

Paul Bours gave me hope that something could be done. He is a personality and comes across as very nice guy and sincere. He was very understanding. My mother also asked a lot of questions. He told me he would put rods in my feet rather than fusing the joint and this would be more flexible. He asked me to go and get more x-rays which I did. I was wary after the consultation but I was confident in him. He told me he had 20 years' experience and had done this surgery many times. I clearly recall emphasising to Paul Bours about what Dr Lunz told me, but he told me there were no other risks than that of having a general anaesthetic. I also told him about my Lupus and other health issues..." (Statement of Patient C, 25.02.2011, CV 1, Tab 18).

148 There was a second consultation on 10.08.2009, and Patient B was again accompanied by her mother. Patient B states that during that consultation the practitioner asked if she was a smoker. When she said that she was indeed a smoker he reportedly said that she should cut down as much as she could before the surgery, but said nothing about afterwards (Statement, CV1, Tab 20). The practitioner disputes this version of events, claiming that he gave Patient B advice not to smoke.

149 Patient B summed up her expectations in her statement:

"Paul Bours was very aware of my state of mind and that I was looking to have my life back by having this surgery. I have always been very active and all I wanted was no pain without any risk. He explained that after the surgery that I would have my complete life back and be a real girl and wear high heels and take up all my hobbies. He gave me higher expectations that I had myself and gave me these expectations from the very first time I met him. I had this build up of one year waiting to get my life back..." (Statement, CV1, Tab 20)

150 Patient B had surgery on the left foot at Sydney Day Surgery in Darlinghurst on 04.09.2009. The surgery took five hours rather than the predicted two to three hours. Patient B was discharged with a sheet of paper with post-operative instructions. Regular redressing of the foot was required at home and a follow-up appointment occurred one week later on 11.09.2009, where all was said to be in order. The practitioner authorised weight bearing.

151 Patient B attended her general practitioner 12 October, 2009 for what transpired to be a staph infection, and was prescribed antibiotics. She reported this to Dr Bours' office and received a message from him that the treatment was correct and that she should follow the general practitioner's instructions.

152 There was a problem with one of the rods in the foot. At a later appointment the practitioner removed a rod from her foot in his consulting rooms. This was reportedly done without warning and without any anaesthetic.

153 Regular physiotherapy was commenced and Patient B states that her foot was fully healed by Christmas 2009, although there was some complication with this foot after that time. It seems that, as a result of physiotherapist's instructions to stand on tippy toes that a bone had 'popped' in the foot on or around 23.02.2010. The practitioner advised that he would fix this during the next surgery on the right foot.

154 Patient B attended the practitioner on 16.03.2010 to discuss the right foot surgery. Her recollection is that the practitioner advised that the surgery would be less traumatic and much better than the surgery on the left foot. The plan was to put in a titanium screw in her big toe, rather than a plate as it would be more flexible. Rods would be used on the other toes. The bone would be shaved back on the left foot during the surgery to repair the post-operative problem that had occurred. In an earlier consultation (02.02.2010) the practitioner said that he would do the surgery in a different way, and try to minimise the incisions and scarring, advising that he had done this surgery many times.

155 Surgery took place on the right foot on 31.03.2010. It was the practitioner's contention that Patient B had requested this date as it was the Wednesday before the Easter weekend and it was a time when there would be ample support at home. Patient B does not agree with this version. She states that she simply requested that she not have the surgery in the heat of summer to avoid the discomfort of not being able to bathe. The choice of the date of surgery becomes a pivotal issue, as many of the difficulties that flowed from this surgery indeed flowed from the lack of support and aftercare over the Easter weekend holidays when the practitioner was not available.

156 On 1 April, 2010, the day after the surgery and the day before Good Friday, Patient B was contacted by both Sydney Day Hospital and the practitioner to check on her progress. The hospital staff asked if her toe was bleeding, but she could not tell as it was covered by bandages. She told the practitioner that she was alright, but that the toe looked a bit blue. He asked her to pinch it to see if the colour came back, which she said she would ask her family to do later.

157 At 4.30pm that day she rang the office to speak to the practitioner because her big toe had started to bleed. She explained the situation to the receptionist and was told that the practitioner was in a meeting and that he would call her back. No return phone call was made, leaving Patient B leading into the Easter weekend without a way of contacting him. She rang the surgery but it was closed for Easter and the practitioner had travelled interstate for the holiday weekend.

158 Around Good Friday Patient B was experiencing significant unmanageable pain, despite taking Endone and Panadeine Forte. By Friday evening her family located the practitioner's mobile phone number amongst the paperwork. Her evidence is that a message was left on his voicemail and that she (or the family) continued to ring on Easter Saturday without success.

159 By Sunday 4 April, 2010 Patient B was reportedly in a state of distress and agitation. Her mother and daughter took her to Sydney Hospital Accident and Emergency department. The Tribunal, in considering the evidence, finds that Patient B probably acted quite poorly and unwisely, albeit that she was in pain. She was demanding and abusive to staff, resulting the staff threating to call hospital security to the scene. Her claim was that she was told by a doctor on arrival that they did not know what kind of surgery had been performed and that they could do nothing for her. The Tribunal does not accept that a patient fronting to a casualty department was refused treatment outright in the manner described. It would rather seem that Patient B's conduct was strident and disruptive, and that she contributed to a poor outcome at a point where she could have received some assistance,

160 According the hospital records Patient B discharged herself against medical advice within forty-nine minutes. On balance of the evidence it appears that Patient B acted contrary to her own interests and against the wishes of the family members who took her there. It was a point of contention between the patient and the practitioner in these proceedings that Patient B did not take her operation report to the hospital with her, with the practitioner asserting that her failure to do so compromised her care.

161 The version of events put forth by Patient B is that numerous phone calls were made to the practitioner's mobile phone over Easter. This is also a point of dispute. The practitioner's argument is that the calls did not occur with the frequency suggested by Patient B, and that the first phone call was that recorded on the account was around 2.30pm on Easter Sunday, to which he responded that evening. The argument of the HCCC is that because the phone was out of range the attempted calls were not recorded on the telephone accounts. The telephone accounts are discussed later in these reasons for decision. The practitioner contends that if the alleged attempted calls do not appear on the account, then they did not occur - that is, that were he out of telephone reception range and calls were attempted but not connected, then such calls would still appear on the bill. The Tribunal has no forensic evidence before it to resolve these two disputed versions of interpretation of the telephone records.

162 What is agreed is that on Easter Sunday evening the practitioner rang Patient B in response to a message left on his mobile phone voicemail. Her version of events is that he apologised for not returning her call on Thursday but said that he had been away for the long weekend and he didn't call back because he was out of phone range. He instructed her to remove the outer bandage. This gave relief and revealed that there had been a lot of bleeding. He gave instruction that someone should pinch the toes to see if the colour returned.

163 The practitioner saw Patient B in his rooms on Tuesday 6 April, 2010. She was in pain but it had subsided. The bandaging was removed and replaced with another covering and she was told to return on Friday 9 April, 2010.

164 Things deteriorated. In an appointment with the practitioner on 8 April, 2010 Patient B was told that the presentation looked like vasculitis. He couldn't obtain a pulse in the third toe, and only a partial pulse could be found in the big toe, which was black and blistering by this time. When questioned, Patient B admitted to smoking at either midnight on the day of the surgery, or the next morning.

165 On 8 April, 2010 the practitioner arranged for the general practitioner, Dr Munro, to refer Patient B to see Dr Lennox, a vascular surgeon, at Prince of Wales Hospital. She attended the hospital that day. A vascular test was done and the opinion was that Patient B did not have vasculitis, but that there was no pulse in the third toe, and faint pulse in the big toe. She was advised that it could be an infection. She was offered admission for observation, but declined this as she preferred to be at home. In hindsight, this too, was a poor choice that may have compromised Patient B's care in a rapidly deteriorating medical situation.

166 According to the evidence of Patient B (CV1, Tab 18, Statement) it would seem that the practitioner had been in discussion with Dr Lennox after the consultation, and he agreed that it wasn't an infection and that it might be micro-vasculitis. Patient B reports that the practitioner told her that this was caused by Lupus. He asked her to return to Dr Lennox, but Patient B declined to do so, preferring to consult with her GP. She telephoned him and he wrote her a letter to take to St Vincents Hospital Emergency department.

167 Patient B did not attend St Vincents Hospital until the next day, Saturday 10 April, 2010. She was told by the doctor there that her toes would need to be amputated, and this was confirmed by a staff doctor, Dr Graham. Patient B was admitted and remained at the hospital until she discharged herself on 15 April, 2010, against medical advice. It seems that the hospital was taking a 'wait and see' approach.

168 Upon discharge Patient B asked her general practitioner, Dr Munro, for a referral to another surgeon, Dr Jeremy Hunt, a cosmetic surgeon, being someone that she had known for some time. Dr Hunt advised that amputations were needed, but was unsure as to the degree. He referred her for admission to Prince of Wales Hospital.

169 Upon admission, among other things, Patient B had sessions in the hyperbaric chamber, which, in simple terms, attempts to open the blood vessels and veins with the hope of preserving as much of the foot as possible.

170 The picture of Patient B being a wilful patient prone to make decisions against her best interests is painted by part of a letter by Dr Hunt to Dr Munro:

"...I have had firm words with [Patient B] regarding the importance of controlling this situation given her background of immunosuppression on SLE, as well as smoking.

She informs me she had recently spent time in St Vincent's hospital but discharged herself against medical advice..." (CV2, Tab 22, dated 15.04.2010).

171 On 23.04.2010 amputation surgery was performed by Dr Hunt. The third toe was removed and part of the big toe. Patient B was discharged the following day, and continued post-operative care with Dr Hunt. He said that the problem was not vasculitis and suggested that she return to Dr Bours to consult concerning the remaining toes. She was not willing to re-engage with care by the practitioner.

172 The practitioner takes great umbrage at that fact that he was denied the opportunity to address the problems as they occurred, and maintains that Patient B's medical condition was compromised by the lack of continuity of care. During the hearing the practitioner spent a great deal of time attempting to establish breaches of professional courtesy against him by medical practitioners. It is clear in this case that Patient B wanted nothing further to do with the practitioner, and such arguments as were advanced, albeit with great gusto, have no bearing on this matters at issue in this complaint.

173 The practitioner made various attempts to contact Patient B. He also contacted her general practitioner, Dr Munro, and through that route of communication made contact with Dr Graham at Prince of Wales Hospital. Patient B did see Dr Graham on one more occasion, but she ultimately sought the assistance of Dr Martin Sullivan, orthopaedic surgeon on 25 May, 2010,

174 After assessment and a time for the foot condition to settle, Dr Sullivan performed corrective surgery on both feet on 1 February, 2011 and a third toe was removed.

175 Patient B complains of ongoing foot problems, with pain, deformity, altered gait, and lack of sensation in some areas. She also complains of chronic pain syndrome, which requires ongoing pain management. She reports that the surgery and the complications have impacted her whole life. Footwear is difficult to obtain, and she requires different sized shoes for each foot.

Particulars 9a) & 10a) - Did the practitioner fail to consult appropriately with other doctors for both surgeries?

176 Particulars 9 and 10 are identical in content, with the former relating to the first surgery and the latter relating to the second surgery. Particulars 9a) and 10a) allege the failure of the practitioner to consult with Patient B's general practitioner or rheumatologist in relation to the decision to go ahead with the procedures and arrangements for post-operative care. Firstly, it was clear in the course of evidence that Patient B had not consulted a rheumatologist for many years, and the practitioner cannot be faulted for failing to contact her rheumatologist who had, in fact, retired.

177 However, the evidence is also clear that her general practitioner, Dr Munro, was not consulted by Dr Bours prior to the first surgery. It would seem that Dr Munro was put on notice by way of a letter after the first surgery, that there was a possibility that Patient B would undergo a second, undescribed surgery, at some time in the future.

178 The practitioner claims that Patient B told him she had clearance from her GP for the first surgery, however, even if the Tribunal thought this was a true version of events, it would not have been a reasonable course of action to rely on a patient to obtain and communicate such clearance.

179 Dr Gilheany, Podiatric Surgeon and expert for the practitioner, was asked in examination if he would rely on a patient's verbal advice that their doctor had given medical clearance for surgery:

Q. Would you take their word, if they said they had a conversation with their general practitioner, as far as clearance is concerned, would you take their word?

A. I would prefer to seek that clearance in writing (T740, L46-7; T741, L1).

180 In cross-examination Dr Munro conceded a vague recollection of a phone call from the practitioner on his private mobile phone number. The practitioner contends that this call occurred sometime between Patient B's 16.06.2009 appointment with him and her first surgery on 04.09.2009. The practitioner further put to the witness in cross examination that in that telephone call he explained his new qualifications as a podiatric surgeon, as well as the proposed surgery and aftercare. Dr Munro did not recollect anything more that the practitioner informing him of his surgical qualifications, but acknowledged that the call must have been something to do with Patient B. Dr Munro did not have any sense of the timing of that call. There is nothing in Dr Munro's clinical notes that indicate knowledge of the first surgery prior to its occurrence.

181 Patient B had consultations with her general practitioner, Dr Munro, on five occasions from the beginning of 2010 prior to the second surgery on 31.03.2010. Dr Munro's notes for each appointment are appropriately detailed. There is an entry for the consultation of 22 March, 2010 which reads "foot surgery on 31 March 2010" (CV2, Tab 22, p.75). Dr Munro confirmed in oral evidence that Patient B informed him of the planned second surgery. (T135, L20-25).

182 The practitioner points to a letter dated 17 September, 2009 written by him to Dr Munro after the first surgery. This letter was scanned into Dr Munro's records system on 28.09.2009. The following is an extract of that letter:

"...After frank discussion of the risks and complications of this type of surgery (especially with the risks of her hypercoagulation due to her SLE) we decided on a surgical plan involving Day Surgery under a light GA with no tourniquet; utilising local anaesthetic and some epinephrine to include a pan metatarsal head resection using absorbable pins which remain in situ to position the toes in correct alignment. These pins dissolve over 12 months. The procedure involved resection of the heads of the metatarsals and the IPJs. I have fused 1 and 5 IPJ. This plan is designed to produce more rigid functional digits. The MTPJ area should be stabilised by creating fibro-cartilaginous joints...

...I am going to see [Patient B] in two weeks and I will keep you informed of any developments. After a few months we will discuss surgery on her other foot..." (CV2, Tab 24, p.34).

183 It can be concluded that Dr Munro, over a fortnight after the first surgery had been completed, was advised that a surgery had been performed and given an overview of what had been done. He was also put on notice of the possibility of a second surgery at some time in the future, but no details were given as to what was planned.

184 Interestingly, Dr Munro expressed the view in the course of oral evidence that he would not expect a surgeon to contact him for medical clearance to go ahead with surgery on a patient. He stated that this was up to the surgeon (T168-170, passim).

185 The Tribunal, does, however, draw some distinction here. With all other surgeons, perhaps with the exception of oral surgeons, a person is habitually referred by their general practitioner to the specialist. Indeed, although a person may technically approach a surgeon / specialist on their own behalf, this would be a very rare occurrence, as it negates one's entitlement to Medicare funding. So, in cases where a surgeon makes a decision to proceed with surgery there are two distinguishing features from a person directly engaging the services of a podiatric surgeon on their own behalf. Firstly, the referral is from the general practitioner, and would routinely contain relevant medical information. Secondly, surgeons other than podiatric surgeons (and oral surgeons) have medical degree training before specialisation in their chosen field. Additionally, they can order their own pathology tests if required. Podiatric surgeons are not medically trained doctors in the way understood by the community. This is not to deride podiatric surgeons or their training, but is simply a matter of fact.

186 Dr Gilheany, a podiatric surgeon and one of the practitioner's expert witnesses, although not one to routinely get pre-surgical general practitioner clearance, does acknowledge the need to do so in cases where a person has systemic comorbidity:

"If the condition is stable, they're on a stable regime of medications and there's nothing in their history to suspect that there's an exacerbation or flare, it's really an unnecessary impost on the health system to do so. Again it still comes back to communication with general practitioners. If there is any element of their condition that's not looking stable at my assessment, I would be communicating with their general health practitioner in saying, "Look this person is considering this procedure, given their history and given their clinical presentation I would like you to conduct a full systems review as necessary and provide me clearance for elective foot surgery'". I certainly do that, but you know, for many many patients who have got co-existing comorbidities it's not my routine to obtain blood tests pre-operatively at all ...

...look I would still work to the notion that I would communicate with the general practitioner. I mean if somebody has a systemic comorbidity of a significant nature, I would communicate with their general practitioner." (T742, L2-12; 35-7)

187 The practitioner's notes say "will need medical clearance before any contemplation of Sx [surgical treatment]". The Tribunal gives this entry little weight due to the numerous inconsistencies in the notes and the likelihood that the practitioner has later amended his notes to protect his position in these proceedings.

188 The Tribunal is satisfied that, despite Patient B's assertions that her auto-immune condition was in remission, it would have been a proper course of action, given her medical history and the fact that the practitioner is not a general 'medical doctor' in the sense generally understood, to have consulted with her general practitioner about the proposed surgery and aftercare.

189 As discussed, the Dr Bours did write to the general practitioner in a letter dated two weeks after the first surgery, and that letter did outline the procedure that had been performed in that surgery. Further, the letter did indicate that the practitioner and Patient B would be discussing surgery on the other foot at some time in the future. The clinical records on 22 March, 2014 of Dr Munro tell that Patient B advised him that she was having another foot surgery. There is no detail as to what sort of surgery was expected. However, a general practitioner having notice of a planned surgery is a far cry from the podiatric surgeon carefully obtaining and considering medical evidence from her doctor and establishing that, with an informed understanding of her current medical status, it was in order to proceed with the surgery. It cannot be said that the practitioner informed the general practitioner of any aftercare needs or plans. Indeed, Dr Munro did not know anything about the type of surgery that had been performed when things went wrong the second time.

190 Associate Professor Bryant, expert witness for the HCCC (Podiatrist and Podiatric Surgeon), concludes that not investigating the extent of Patient B's complex medical condition falls below the standard reasonably expected of a practitioner with the same training and experience. Her view is that surgical management of this patient required a multi-disciplinary approach (CV2, Tab 32, p.4).

191 The practitioner's failure to provide for adequate aftercare following the second surgery had dire consequences. Tribunal is satisfied that the practitioner did not consult with the general practitioner to arrange proper aftercare or a plan for proper prompt medical attention in the event of an adverse development.

192 The Tribunal is comfortably satisfied by the balance of the evidence that particulars 9a) and 10a) are proved on the balance of probabilities.

193 It is not necessary to determine particulars 9b) and 10b), as such are pleaded in the alternative to 9a) and 10a).

Particulars 9c) and 10c) - Did the practitioner fail to obtain a full medical and surgical history from Patient B prior to the first and second surgeries?

194 The Tribunal finds that the practitioner did take a medical and surgical history from Patient B prior to performing each of the procedures and that these particulars are not proved on the balance of probabilities.

195 In examination in chief Patient B described the nature of the information that she gave to the practitioner:

Q. In your conversation we spent a great deal of time with you and your mother discussing your medical history and the previous two surgeons you had consulted and what they had told you about your problem, is that correct?

A. Incorrect, I'd only seen one surgeon, Dr Lunz, that I told ou about. I told you exactly what he said, I told you all my medical conditions that I did or didn't' have at the time. So that's what I recall of the conversation.

Q. In our conversation you told me that you had a long history of Lupus and at that time of consulting me it wa in remission and you would self medicate according to how you felt with Dexamethasone?

A. Incorrect. I did tell you about my history with Lupus and I was told by other physicians that I was in remission. I was not self-medicating. I never use that term. I don't use that term and I had not been taking medications on any regular basis for my Lupus... (T25-6).

Q. The question being asked is did Dr Bours ask you questions about your medical history and did he give physical examinations?

A. No he didn't ask me questions about my medical history. I told him up front when I went in there "These are my issues, I've had Lupus, I've been told I'm in remission." That's how the conversation went that day (T27, L16-20).

196 The Tribunal is satisfied by the evidence of Patient B herself and the surrounding evidence that the practitioner did take a full medical history.

Particulars 9d) and 10d) - Did the practitioner fail to record a full medical and surgical history for Patient B?

197 These particulars are pleaded in the alternative to particulars 9c) and 10c) and allege that the practitioner fialied to record a full medical and surgical history for Patient B.

198 It is not the case that there is a singular standard for recording a medical history. For example, in oral evidence Dr Lunz, orthopaedic surgeon, indicated that he typically does not keep handwritten notes once they have been incorporated into a letter which he dictates in the patient's presence (T435, L25-30).

199 The Tribunal has disquiet about the veracity of the practitioner's records. In oral evidence he advised that the history section of the file could be updated at any time and such updates would not be reflected as new entries as a fresh date is not ascribed to them.

200 Accordingly, the practitioner could have inserted the medical history notes at any time. Indeed there are notes in the Family History section about Patient B being 'stressed out' by her mother and her daughter. As Patient B's evidence is that her mother attended her first appointment, it is unlikely, for example, that she volunteered this information in front of her mother. Yet, it appears in the family history section which would, presumably, have been taken at the initial consultation.

201 The Medical History section, allegedly taken on 16.06.2009, refers futuristically to "DXA test (30.06.09)". That is, the medical history section must have been amended at least two weeks after the first appointment.

202 However, the Tribunal does not have sufficient evidence on the matter of when the totality of the history notes were completed.

203 Although the entries that exist aren't highly detailed, and the given vagueness as to the acceptable standard of record keeping in such matters, the Tribunal finds that, on balance, particulars 9d) and 10d) are not made out to the requisite standard of proof.

Particulars 9e) and 10e) -Did the practitioner fail to obtain copies of recent pathology results and recent specialist reports before procedure two?

204 These particulars concern the practitioner's alleged failure to obtain Patient B's recent pathology blood test results and recent reports from her treating medical specialists, prior to performing each of the procedures.

205 Although there is some question about whether Patient B had recently consulted with any relevant specialists, the gravamen of these particulars is a failure to independently obtain objective medical results to inform the proposed surgeries.

206 It is clear from the evidence that this did not take place and the particulars are proved to the requisite standard.

Particular 11 - Did the practitioner fail to provide adequate information regarding risks and potential complications in the circumstances?

207 This particular essentially contends that the practitioner did not give Patient B adequate information regarding the risks and potential complications of the first and second procedures having regard to Patient B's medical conditions and smoking status.

Smoking

208 It is worth noting that the practitioner's obligation is to give full and proper disclosure of risks of the surgery to their patient. The evidence is that there are additional risks to a smoker, any smoker, undergoing such procedures. The risks associated with smoking are heightened by comorbidities (and vice versa), and such risks include of non-fusion of bones and vascular problems.

209 Determining whether or not a fully informed patient has stopped smoking in accordance with medical advice is a difficult matter.

210 The focus of this particular must be on whether the practitioner did all that was necessary to communicate to Patient B the fullness of the risk of the particular surgeries to her, given her the matters that compromised her and increased risk of complications. These include her history of Lupus and rheumatoid issues, her immunosuppression, and her smoker status.

211 Whether or not the appropriate warnings were given, the Tribunal is quite convinced that Patient B continued to smoke before and after the surgeries. She admitted to smoking after the surgeries but claims that the practitioner never advised her against it. (T59-60). Daughter B attended all but the first appointment with the practitioner. She echoed her statement in oral evidence with the claim that the practitioner only told Patient B that she could not smoke on the morning of the surgery (T177, L7). The practitioner claims to have explained the importance of cessation of smoking for a fortnight before and after the surgeries.

212 Even after the dire complications of the second surgery performed by Dr Bours, Patient B persisted smoking after Dr Sullivan's later revision surgery in 2011. Despite thorough education and counsel on smoking, all Dr Sullivan could be confident of was that she didn't smoke on the day of the surgery or in the few days after when she was in hospital (T546, L41-44, extracted below). Accordingly, there is certainly precedent for Patient B ignoring warnings not to smoke around surgery.

213 Indeed Dr Sullivan had some helpful evidence in cross examination on the question of risks and smoking in such cases:

Q. Were you aware whether [Patient B] continued to smoke at that surgery or not?

A. Well the note in October is telling the GP that she's continuing to smoke, but most of my patients will tell you that I'm very big on trying to get them to stop smoking, particularly if they can before/after the surgery, recognising that it is very difficult for some people to stop smoking, but it is important, particularly given her history, which is why I mentioned that in October that she's still smoking, but as far as her surgery, patients are counselled about smoking and the possible effects on causing vasoconstriction but also with fusion surgery it's well documented in the spine and also in foot surgery where you're trying to fuse a joint, if you smoke then - the chance of it trying to achieve an arthrodesis, if you smoke the chances of that fusion not taking goes up by about a factor of 16. So much so that in the US some surgeons will do urine tests on patients after the surgery to see if they've been smoking.

Q. So was [Patient B] still smoking when you operated on her on February 1?

A. Well, she wasn't smoking on February 1. She certainly wasn't smoking while she was in hospital and at any review afterwards, patients are usually asked whether they've been smoking. Sometimes you can smell it on them.

Q. What would you do if you smelt it?

A. If you just counsel them. I mean you, you know, when patients come to your office.

Q. Would you agree it's difficult to police?

A. What goes on when they leave my office I've got no control over it. I mean I can, you know, at the end of the day you give advice to patients, smoking particularly pre-operatively will tell them, and given [Patient B's] history, that it's important, it's - you know, it affects the circulation, so. I am very big on trying to get them to stop smoking (T546, L27-47; T547, L1-8).

214 The practitioner's notes refer to smoking on a number of occasions:

"Family History: Her way of the highway but willing to comply with rehab restrictions and abstain from smoking peri op at least. (CV2, Tab 24, p.9)"

"Smoker; yes 15 per day to a pack if stressed" (CV2, Tab 24, p.9)

"Understands increased risks because of co-morbidities and continued issue of smoking." (CV2, Tab 24, p.10)

"Education: Understands demand to abstain from smoking 2 weeks before and after sx [surgery] or her outcome will be compromised...

...Requested cessation of smoking for 2 weeks before/after surgery." (CV2, Tab 24, p.11)

215 The practitioner could offer no real explanation as to why the entries about smoking were strangely repeated, other than that it "was important" (T619, L40), and refuted the suggestion in cross examination that late additions had been made to notes once a complaint had been made concerning Patient B.

216 What is clear is that some discussion took place around the issue of smoking. Patient B concedes that the practitioner advised her to 'cut down', so we can be satisfied that he made known the fact that smoking was detrimental in this case.

217 The question then becomes one of whether the practitioner made known the extent of the risk of smoking to this particular patient, taking into account the history of Lupus, the potential vascular problems as well as non-fusion of bone, and other relevant complication risks.

218 It is also quite clear that Patient B can be a very wilful person, by her own admission. Her general practitioner, Dr Munro, conceded in cross examination that she would sometimes make medical decisions that were adverse to her best interests (T144, L20-22). The Tribunal can be in no doubt that Patient B knew that smoking was ill-advised in relation to this surgery. Even the HCCC's podiatric surgeon expert witness, Mr van Essen, surmises that Patient B has not been compliant with treatment advice, given that on two occasions she did not comply with the advice of vascular surgeons, Drs Lennox and Graham (CV2, Tab 30, p 4, report dated 07.04.2011).

219 It is noted that part of the complaint concerning Patient A alleges a complete failure to discuss the effects of smoking and the Tribunal considers that fact to have been proved on the evidence. The HCCC contends in its general submissions that there exists an internal consistency in the experiences of the patients, one of which is a failure to communicate the serious problem with smoking around the surgery time.

220 While it is difficult to assess whether the practitioner gave Patient B a proper and fulsome treatise on the heightened risks of smoking before and after the surgeries, the Tribunal cannot be comfortably satisfied on the available evidence that he did not.

221 However, the Tribunal considers that this particular is not simply about the failure to warn adequately about the risks of smoking in conjunction with Patient B's medical history, but of the risks posed by the surgery in consideration of her medical history as well as her smoking status.

Risks associated with medical history

222 Dr Lunz, the orthopaedic surgeon Patient B consulted in 2006, referring also to his report in oral evidence, outlined the risks that should have been communicated by the practitioner:

Q. That if surgery is the appropriate treatment, what advice should be provided prior to surgery in relation to other risks and potential side effects and benefits and can you just indicate to the Tribunal what you say those are, as set out in the letter?

A. Well, SLE patients, and [Patient B] in particular was immuno-compromised, both from her condition and from the fact that her treatment consisted of Prednisone, which is an immunosuppressive agent. So, therefore, the risk of infection in this patient population group is increased. Wound healing is also impaired for similar reasons. There is, in all surgery, a risk of delayed unions if fusions are undertaken, as well as mal-union or non-union of those fusions. In [Patient B's] case and patients with SLE in particular, vascular compromise to the toes can occur. It's particularly important because SLE - part of SLE is a vasculitis that can cause spasm of the vessels. So even if they may appear normal, they can go into spasm of vessels. So I said that there was a risk of amputation. Surgery should be performed in summer because of the obvious effects of cold weather on decreasing vascular supply and causing vasospasm in vessels or compression of vessels and the patient should be advised to stop smoking for at least three months prior to surgery but particularly in patients who have a chronic illness, such as deep venous thrombosis and pulmonary embolism, chronic pain, chronic regional pain syndrome, a fairly rare condition but a pretty devastating one when it occurs, implant failure on breakage and the need for revision surgery (T438, L5-27).

223 Dr Lunz, orthopaedic surgeon expert witness for the HCCC, lists in his report the risks and the appropriate advice which should be provided prior to surgery in relation to the risks and potential side effects and benefits:

"The risks of surgery include:

Infection

This is increased in a patient with SLE who is immunocompromised by the disease and by the treatment (prednisone)

Delayed wound healing

Same reason as above.

Delayed union of the fusions

Mal union and non union of the fusions

Vascular compromise to the toes

This can occur as a result of correcting the deformities. This is particularly relevant in a patient with SLE who already has a compromised blood supply. There is a significant risk of amputation as a result of vascular compromise. Surgery should be performed in summer to reduce the risk of cold induced vaso-constriction which would further compromise the blood flow to the toes. The patient should be advised to stop smoking at least 3 months prior to the surgery.

Deep venous thrombosis and pulmonary emobus

Ongoing pain and chronic regional pain syndrome

Implant failure/breakage

The possible need for revision surgery.

The benefits of surgery would be correction of the deformities and reduction in pain." (CV2, Tab 35, p3)

224 Mr van Essen does describe Patient B as a high risk candidate for a pan metatarsal head resection, given her twenty year history of Systemic Lupus Erythematosus, and her smoking. The major risk factors, he postulates, would have been for vascular compromise leading to ischaemic, as well as deep vein thrombosis (CV2, Tab 31, p.3).

225 The Tribunal accepts that Patient B was a high risk patient for these surgeries. Her chances of a good outcome were compromised by comorbidities. There is no shortage of evidence on this point, despite the practitioner's argument against the existence of such risk on the basis that the Lupus was reportedly in remission.

226 Patient B's evidence was that the practitioner told her that the only risks were the risks associated with anaesthetic. This evidence is corroborated by her mother and daughter who attended appointments. The scenario outlined by Patient B was that there was much talk about the positives of the surgery and the benefits, as opposed to the more traditional surgery that had been outlined by Dr Lunz some years earlier.

227 Patient B regaled a conversation where she showed the practitioner a picture of a $2,500.00 Yves St Laurent stiletto boots, and he told her that she would be able to wear such a boot in the future. She describes being swept up by promises of quick recovery, aesthetic improvement, restored mobility and the ability to wear high heeled fashion shoes. All was, by Patient B's account, very impressive and charismatic. It would seem, from her version of events, that the practitioner maximised the benefits of the surgery and minimised the risks.

228 The practitioner submits Patient B was properly apprised of the risks in a 'full and frank discussion'. He points to Patient B's admission that she read his website (conceded in oral evidence) before coming to see him and that by doing so she was apprised of the different types of operations, the risks and complications. The Tribunal can dispense easily with this submission as it is without substance. A practitioner cannot discharge this responsibility simply because a patient has looked at a general website.

229 The practitioner also submits in answer to the allegation of failure to adequately explain the risks that Patient B conceded in oral evidence that they had discussed that the surgery would be a different style (T43, L35-43). This submission, like the last, indicates a failure by the practitioner to understand the type of information a medical practitioner must convey to a patient about risks or surgery, particularly a patient a high risk patient like Patient B.

230 Finally, the practitioner relies on his clinical notes to establish that he disclosed the risks adequately. As considered already in these reasons for decision, the Tribunal considers that the number of inconsistencies in the practitioner's notes cause them to be unreliable in the face of sound conflicting evidence.

231 In his submissions the practitioner states:

[Patient B] was not sick, she was on one medication. [Patient B] is 45, was in medical quiescence.

232 In light of the surrounding expert evidence as to Patient B's medical vulnerability in this surgical plan, the practitioner's submission fails to acknowledge the real risks of such surgery to a person with a history of Lupus, albeit in remission (although the practitioner did not take any independent steps to establish this), rheumatoid problems, and who was a long-term heavy smoker.

233 The Tribunal finds that the practitioner did not give Patient B adequate information concerning the risks of foot surgery, given her pre-existing medical conditions, and on balance, finds particular 11 proved to its comfortable satisfaction.

Particular 12 - Should the practitioner have given warnings about MIS?

234 This particular is centred on the controversy or otherwise of the use of "minimal incision surgery", also called "minimal invasive surgery" ("MIS").

235 The particular agitates that the practitioner failed to advise Patient B that the MIS techniques he proposed to use in the first and second surgeries were considered controversial by other podiatric and orthopaedic surgeons.

236 Much time was spent in the hearing narrowing down what was actually meant by MIS in the context of this Complaint. The expression that was coined during the hearing by the practitioner was that MIS was a "broad church", meaning that there were many procedures that came under this generic banner.

237 This is true. To describe a surgery as minimally invasive could include widely accepted procedures such as endoscopies and arthroscopies, to give two simple examples. It is essentially using small portals or access points to perform procedures that might otherwise be performed as more open surgery.

238 The HCCC pointed to a resource document produced by the Australasian College of Podiatric Surgeons, approved in October 2010 and revised in October 2012. (CV5, Tab 103).

239 This document states:

...The NHMRC [National Health and Medical Research Council] does not have specific guidelines for MIS. The College advocates the recommendations made by the Council of the British Orthopaedic Foot and Ankle Society (BOFAS) and the National Institute for Health and Clinical Excellence (NICE) with regard to MIS.

The guidelines formulated by BOFAS and the NICE recommend that surgeons are suitably trained in MIS techniques, use appropriate equipment and fully inform their patients of the novel and possibly experimental nature of MIS without evidence of long-term results. Additionally it is suggested that an audit process be implemented for patients treated by MIS and surgeons be prepared to undergo peer review of their MIS results...

240 The Tribunal notes that these guidelines were first approved in October 2010. Patient B's second surgery, which involved use of MIS, was in March 2010. The practitioner cannot be taken to have departed from these guidelines in relation to Patient B's surgery.

241 That then leaves us to consider whether, prior to the guidelines but at the relevant surgery time, there was a general expectation that where MIS was a proposed surgical technique the surgeon should outline that such was considered controversial.

242 Dr Gilheany gave evidence that it is hallux valgus surgery (that is, surgery to treat a bunion on the great toe) that is referred to by the Australasian College of Podiatric Surgeons in the resource document on minimal incision techniques, referred to above (T743, L42-44).

243 When asked if such MIS was controversial, Dr Gilheany said he would more describe it as "topical" Hallux valgus surgery is within what he describes as the "topical" range of procedures.

Q. I just wanted to follow that line of questioning about the terminology that we're using and we've had at various stages of the hearing the term broach church being used to indicated that minimal incision surgery is a term that can be used to - in a descriptive sense, in the way that you quite aptly described whether the procedure is attempting to get access via a smaller port rather than larger cut, if I can use so plain a term. Then it's also being used in various literature and so on with a specific meaning. Clearly if someone is specialising in minimal incision surgery in the podiatric sense they're not just referring to that generic descriptor. So I'm wondering, when you said that you would consider that minimal incision surgery, and we're talking the specifics, to be topical, not controversial, can you tell me what types of surgery you're referring to...

A. The topical range would probably - the most topical would probably be hallux valgus surgery. In both orthopaedics and podiatric surgery there are, actually more in orthopaedics at the moment, there are a lot of people utilising minimal incision techniques for hallux valgus surgery and that is the topical one because it's a large joint... (T742-3).

244 Dr Gilheany, a proponent of MIS, was questioned as to what, if any, additional explanation he might give to his patients for hallux valgus surgery:

A.If I'm using a percutaneous approach, as I think I indicated earlier, I will say to patients that I use a range of techniques, I will use an access technique which is the most minimal I can to reduce trauma. I use terms like, this is new, we're still monitoring outcomes. If this does not achieve the result we need to achieve we may have to perform some revision surgery but all of the statistics and the results we're getting to date support its use, so if you're happy for me to use that approach then I will use that approach (T744, L34-47).

245 Mr Tillotson, podiatric surgeon expert for the HCCC, didn't consider MIS to be controversial and conceded that it had its place, although he didn't use it himself. He regarded it as being in an "evolutionary" stage and commented that there wasn't a lot of mainstream publication on MIS.

246 Importantly, in his report, Mr Tillotson concludes that the practitioner's choice of MIS procedure in Patient B's second surgery was appropriate within his chosen field of surgical practice and that the standard of surgical choice was consistent with his level of training (CV2, Tab 34, p.3). He considered the risk of MIS surgery for Patient B to be no greater than those posed by conventional surgical intervention if carried out by a MIS qualified and experienced surgeon. He deemed the practitioner to be suitably qualified and experienced. (CV2, Tab 34, p.4).

247 Mr van Essen, another podiatric surgeon expert for the HCCC, regarded MIS as being novel and possibly experimental, without a lot of long term evidence of results.

248 Dr Lunz, the orthopaedic surgeon, considered that the risk of vascular damage was greater in a minimally invasive procedure than when one could actually see the vessels and avoid them (that is, when using traditional open techniques).

249 Dr Salerno, expert podiatric surgeon for the practitioner, in commenting in oral evidence on his report statement that MIS is not common in Australia, explained that Australia had been lagging behind other countries in using MIS in foot and ankle surgery. He considered the time of Patient B's procedures to be a time of introduction of MIS in Australia for such procedures. (T788, L1-12). He conceded that the recommendations in the BOFAS guidelines make a fair comment, but that he didn't consider MIS to be controversial (T788, L20-43).

250 What can be gleaned from this short synopsis of the evidence before the Tribunal is that there is a range of opinion about whether MIS is controversial, novel, experimental, evolutionary, or topical. Whether that of itself leads to a conclusion that the technique is controversial is a reasonable question to ask.

251 Daughter B gave evidence during the hearing due to her contemporaneous knowledge and experience of the events concerning her mother that are the subject of this Complaint. She was present at all but the very first appointment and recalls some of the conversation between the practitioner and her mother concerning the second surgery:

Q. So do you remember that there was a conversation about minimal incision?

A. All I can remember in relation to the second surgery was your mentioning that you were going to be doing it a completely different way than you did the first and yes it wasn't going to have as many cuts or openings as I call it on the foot... (T180, L7-11)

252 She agreed in cross examination that she recalled advice by the practitioner about use of rods, the fact that he had studied this type of surgery in America, that it was 'wet' surgery, and that he had compared the traditional orthopaedic approach to the approach that he was to take (T180, passim). She also agreed that there was ample time to ask questions (T178, L1).

253 Essentially, the question falls to whether Patient B was aware that this was not mainstream surgery, and whether she knew that there were divergent opinions about it.

254 By her own evidence, Patient B sought out the practitioner when her orthopaedic surgeon had told her of a raft of complications associated with what he considered to be the proper surgical approach. Dr Bours was actually sought as an alternative to this. She was aware that there was no Medicare rebate available for his services. She was told of studies in America, and that it was a different technique. The practitioner promoted his different approaches as a benefit, with less incisions, purportedly better recovery times, and less trauma and scarring. Whether there could be delivery on those points, particularly in complex cases, is another matter. We can be confident that the practitioner did not advise patients that some may consider the MIS procedures controversial.

255 However, given that we consider that the practitioner was not bound by the Australasian College of Podiatric Surgeon guidelines (October 2010) concerning MIS as they didn't exist at the time of the surgery, the gravamen of the particular can be reduced to the question of whether Patient B knew that MIS was alternate and not mainstream surgery.

256 During the course of oral evidence Patient B variously described herself as an "intelligent and informed consumer", and a "schmuck" consumer, depending on the point she was trying to make. She presented to the Tribunal as an inquiring consumer who took notes at most consultations. She had researched to find the practitioner as an alternate therapist when the advice from mainstream orthopaedic surgery had been to avoid surgery until it was utterly unavoidable.

257 The facts bear out that Patient B did know that MIS was alternate and not mainstream surgery, and we therefore find that particular 12 is not established.

Particulars 13 and 14 - Was the consent form inadequate for each surgery?

258 This particular is common to the complaints concerning Patients A, B, C, and D, and agitates that the practitioner utilised a consent form for surgeries one and two respectively that lacked information about the specific risks of the procedure to be performed and failed to clearly identify the procedure to be undertaken.

259 The HCCC relies on the opinion of Associate Professor Bryant concerning the consent form. Associate Professor Bryant was critical of the fact that although there was a hospital Referral for Admission form that amounted to a consent form, there was not a separate and more specific consent form. (CV2, Tab 30, p.3). Such consent form, should, according to Associate Professor Bryant, confirm that all normal expected risks of surgery have been outlined to the patient. Associate Professor Bryant concludes that if this was omitted it "does not reflect good clinical note keeping". This opinion was confirmed in oral testimony (T382ff).

260 Despite the view of best practice expressed by Associate Professor Bryant, it must be acknowledged that the consent form, even if not ideal, is in a form commonly used for surgeries. For this reason, echoing those outlined elsewhere in these reasons for decision, the Tribunal finds that particulars 13 and 14 are not proved.

Particular15 - Did the practitioner fail to obtain informed consent?

261 This particular, common to the other patients, alleges a failure to obtain informed consent for each of the surgeries, having regard to particulars 11, 12, 13 and 14.

262 On the balance of the evidence the Tribunal finds this particular proved, relying largely on particular 11, which is involved with failure to inform of risks.

263 It would seem that many positives of the proposed surgery were put to Patient B. No matter the zeal of either the practitioner or the patient to proceed to a surgical solution, it is important that the practitioner creates the environment from within which informed consent can be given. This involves communicating accurately the possible advantages and disadvantages of the proposed treatment such that the patient can understand and weigh them to make a decision. A failure to convey the potential risks and complications, particularly for a patient whose health is already compromised by medical and lifestyle factors, prevents a patient, even a very willing patient, from, in truth and in law, giving informed consent. A person cannot consent to submitting themselves to a range of risks of which they are ignorant.

264 The practitioner would undoubtedly claim to have fulfilled his duty in this regard. The Tribunal does not accept the totality of his version of events around these matters. There is also, an internal consistency between the versions of the patients of promises of high delivery, with low disclosure of potential for harm.

265 Undoubtedly Patient B has not been the model patient, and has made a number of poor decisions that may have impeded her aftercare. However, this does not detract from the Tribunal's finding that she was not afforded the opportunity to give informed consent.

266 Accordingly, particular 15 is proved to the comfortable satisfaction of the Tribunal, and we find that the practitioner has failed to obtain informed consent for the surgeries.

Particular 16 and 18 - Was the choice of a day procedure inappropriate for surgeries one and two?

267 The contention by the HCCC is that, given Patient B's heightened risks of complication, and her status as a smoker, that surgery should have been performed in a regular hospital rather than a day surgery.

268 The practitioner did not have admitting rights to any general hospitals. As such, should the need arise for admission to hospital this could only occur by a medical doctor referring the patient for admission (presumably to a private hospital), or by accessing hospital admission via the Accident and Emergency Department of a public hospital.

269 Opinion concerning this differs between the experts. We have considered opinions put by the expert witnesses, and do not propose to cite them in detail.

270 One view put is that the surgery should have been performed in a hospital, with proper nursing and aftercare. This, it is said, is indicated because of Patient B's high risk status due to comorbidities and smoking status.

271 Dr Gilheany disagrees with Dr Lunz's view that Patient B's history of Lupus indicated that her blood supply was compromised. He supports day surgery for such operations, preferring an 'ambulatory' model, and noting that in this circumstance routine post-anaesthetic observations are conducted, along with clinical pedal observations on the operated foot until discharge. (RV3, Tab 83, p.1)

272 Dr Lunz's report, in commenting on the views of Dr Salerno, reads:

"...Mr Salerno fails to comprehend the complexity of [Patient B's] underlying medical problem as well as the severity of her foot deformities. Almost all orthopaedic surgeons undertaking such an extensive surgery in a medically compromised patient... would have kept her in overnight for elevation and observation. This would have reduced the amount of swelling because the foot would have been kept elevated the entire night and would have ensured regular vascular observations being performed. If any selling or impaired capillary perfusion was noted it could have been dealt with immediately. The surgeon would have been able to check the foot himself the next day..." (Report 01.02.2014, p.3, Exhibit C).

273 The HCCC submits that day surgery was inappropriate considering:

• The circumstances of Patient B's medical history.
• The practitioner was a podiatric surgeon without general medical training.
• Patient D's smoking habit was apparently unmodified.
• The practitioner did not have the rights to admit the patient to any hospital.
• There had been a failure to set up in advance appropriate backup and post-operative care.

274 The other view, and certainly the one put by the practitioner, is that it is better to be out of hospital and away from the higher risk of infection that hospital poses. Further, he postulated that Patient B would be better convalescing at home because she had a difficult and demanding personality. Finally, the practitioner is a proponent of ambulatory surgery - that affords a patient the limited opportunity to move. Day surgery is supported by Dr Gilheany and Dr Salerno.

275 Dr Salerno primarily uses day hospital for foot and ankle surgery, but acknowledges that sometimes there are complex medical issues that need monitoring with an overnight hospital admission. Most often the need for a hospital stay arises because someone lives far from the day hospital and it is too much for them to travel home straight away. (T778).

276 There is a portion of evidence that supports the day hospital option, but states that the real issue is that of aftercare and follow-up plans should the patient encounter difficulty after discharge (Associate Professor Bryant). The Tribunal has found such aftercare plans to be sadly lacking in this case.

277 In short, it difficult to discern whether a patient such as Patient B should have undergone day surgery or had at least an overnight admission.

278 It is possible that day surgery could have been appropriate, and determining this would have required making full and proper medical checks and clearance with the patient's GP concerning Patient B's health status and current pathology test results in the relevant areas. This did not happen.

279 It is also possible that day surgery could have been appropriate if suitable care and back up had been arranged for any times when the practitioner was not available. Clearly this did not happen for surgery two.

280 The Tribunal finds that, because these precautions were not taken, regardless of the prevailing view as to whether day or extended admission was advisable, it was inappropriate for these two operations on Patient B to be performed as day surgeries due to the practitioner's failures in preparation as outlined above.

281 The Tribunal finds particulars 16 and 18 proved to the requisite standard. It does not matter that there was no major incident following the first surgery. That may have been good luck more than good management. What does matter is that the surgeries were not safely planned as day surgeries, given the failure to arrange medical clearance on both occasions, and the blatant deficits in aftercare arrangements for the second surgery.

Particulars 17 - Was the practitioner's decision to perform the surgery himself inappropriate?

282 Consideration of this particular is bound up with the matters involved with particulars 16 and 18.

283 Clearly, if one subscribes to the view that the procedure should not, under any circumstances have been performed as a day procedure, then it was inappropriate for the practitioner to perform the surgery himself as he does not have overnight admission rights in any hospital.

284 We consider that the practitioner possessed the relevant skill to perform each of the actual surgeries, and this is borne out by the balance of the expert evidence. This is the submission of the practitioner in response to this particular - that he was qualified to perform the surgery and possessed the necessary skills. The Tribunal does not dispute this after hearing the evidence.

285 The critical issue is whether his decision to do so was appropriate or wise, knowing that Patient B had a history of Lupus which can flare at time and carries vascular concerns, and that he did not have hospital admitting rights, and knowing that Patient B was likely to continue to smoke before and after the surgery.

286 The practitioner seems to have made some erroneous assumptions that because it is technically possible for him to perform a surgery it will also be appropriate. There needs to be a weighing of risks and benefits to be sure that surgery is a good option. The question, therefore, is not whether the practitioner has the technical skills to perform the surgery, but whether, given the limitations already discussed, it was appropriate for him to do so.

287 In agreement with the submission of the HCCC, given Patient A's comorbidities, her unmoderated smoking habit, the lack of medical clearance, his lack of hospital admitting rights, and lack of a plan for good aftercare in the immediate days over Easter after the second surgery, it was inappropriate for the practitioner to perform the surgery himself. Particular 17 is proved to the Tribunal's comfortable satisfaction.

Particulars 19 and 20 - Was it inappropriate to schedule the surgery the day before Easter? Did the practitioner fail to make appropriate arrangements for aftercare while he was away for Easter?

288 The Tribunal has no hesitation in finding these particulars proved to its comfortable satisfaction. These are perhaps the easiest particulars to resolve concerning Patient B.

289 A great deal of time was spent in the hearing on quibbling over whether it was at the patient's request that the surgery be before Easter, and whether the practitioner made appropriate aftercare arrangements.

290 Firstly, the Tribunal places no weight on whether or not the plan to have the surgery on the Wednesday before Easter was at the patient's request or not. She maintains that it was not. It matters little. It is upon the practitioner to exercise wisdom in such matters. Many problems seem to flow from the practitioner's persistent claim that because Patient B was not manifestly sick she was no different to any other patient as far as risks were concerned. The Tribunal simply does not accept this view.

291 The practitioner also spent a great deal of time spuriously asserting that he had discharged his responsibilities by providing his mobile number and an inclusion on the discharge information that the hospital emergency department could be contacted in the event of any problems. This does not constitute adequate provision of aftercare over an Easter weekend, when medical services are typically on minimum availability and the practitioner could not be contacted on his mobile phone.

292 Further, the Tribunal was unimpressed with the practitioner's untruthful assertions that he had briefed Dr Ozcan, a Podiatric Surgeon Registrar, to be a back-up point of care for his patients while he was away over Easter. The practitioner claimed, when it was thought that Patient B no longer had possession of her hospital discharge papers, that he had written his number and Dr Ozcan's number on the documents. When Patient B found the discharge papers during the course of the hearing the practitioner's claims were proved to be incorrect. The document contained no such entries.

293 The practitioner handed up a statement during the hearing, signed by Dr Ozcan. In cross examination of Dr Ozcan it became apparent that the statement had been prepared for him by the practitioner and he had simply signed it. He had not been given any individual information about Patient B at the relevant time of the surgery in 2010. It was also clear to the Tribunal that no arrangements had been made with Dr Ozcan to cover the practitioner that Easter weekend. The best that could be said was that Dr Ozcan would have covered for him if required, but Patient B had absolutely no information about this. It was a hypothetical arrangement at best. If Dr Ozcan had been the on-call back up, he clearly wasn't called upon by the practitioner after he had spoken to Patient B on Sunday evening.

294 More time was spent in the hearing in dispute over whether or not the practitioner was available to be contacted on his mobile phone over the Easter weekend.

295 Contained within the practitioner's clinical records for Patient B are extracts from his telephone account for the relevant period. They are of limited usefulness in this matter.

296 What is clear from the records is that the practitioner did not make one single call between Thursday 12.50pm (made from Sydney CBD) until Sunday 4 April 6.19pm from Avoca. That call and the next at 7.00pm appear to have been made to Patient B. On Thursday 1 April, twenty-one missed calls were diverted to the practitioner's voicemail. Then there are no diverted calls on 2 or 3 April, and the first call that is diverted to his voicemail is on Sunday 4 April at 2.22pm. This would appear to be the call made by Patient B or her family, and a voicemail message was left for the practitioner. From that time until 7.01pm there were twenty-two calls that were diverted to voicemail on the practitioner's mobile telephone. Many of these calls were just minutes apart. This certainly casts a scene of a person being out of telephone range from Thursday evening until Sunday afternoon, given that there is absolutely no telephone activity indicated in the records during the intervening days of Good Friday, Saturday, and Easter Sunday until 2.22pm.

297 In oral testimony Daughter B said that when the practitioner rang on Sunday evening the telephone was on speakerphone and she was in the room with her mother and her grandmother. Her evidence was that the practitioner said he had been out of cell phone range (T184).

298 Whether or not Patient B rang twice or a dozen times, these facts remain:

(1) Patient B telephoned the practitioner's surgery on Thursday afternoon at around 4.30pm and was told by the secretary that he was in a meeting and would call her back. He did not call her back.

(2) The Tribunal accepts that some time/s, and at least by around 2.30pm on Easter Sunday afternoon, Patient B or a family member tried to ring the practitioner on his phone and there was success in leaving a voicemail message. He did not respond until Sunday evening, reportedly apologising that his phone had been 'out of range'.

(3) Given that the practitioner was clearly unavailable over the Easter weekend, there was nothing in place apart from the hospital emergency department for aftercare.

(4) Patient B had not been warned to look out for the type of complications she experienced. That is, she was not forewarned, and definitely not fore-armed.

(5) The general practitioner had not been engaged by the practitioner for support over the Easter period, and Dr Ozcan, the Registrar, had not been asked to be available for Patient B over this time.

299 The Tribunal is satisfied to the standard required by law that the scheduling of the surgery on the Wednesday prior to Easter was inappropriate and unwise, and there was inadequate provision for help in the event of patient difficulties or uncertainty. There is no shortage of expert opinion in the evidence to support this finding (including Associate Professor Bryant Report, CV2, Tab 32, p.6; Dr Sullivan, T526, L8-27).

300 Mr van Essen sums up the position in examination in chief, echoing his report findings:

"..the major criticism was the fact that the surgery was performed two days prior to Easter at a time when Dr Bours was travelling away and on holidays and was unable to be contacted by the patient and given the fact that the dressings appeared to be too tight and including the blood vessels, that this led to a significant level of ischemia and that in conjunction with the pre-existing occlusion, that there was the major factor in leading to the problems associated with the surgery. In my opinion it would have been appropriate for somebody who has had surgery to also have a secondary contact person should the primary contact person not be available to manage that patient and that's a fairly standard thing that would occur in podiatric surgical and most surgical procedures.

Q. So if someone only had one contact number but was otherwise told to attend emergency, would that not be sufficient in your view?

A. Well given the fact that in an emergency situation unless they are able to contact the surgeon to find out what was done, it's not an ideal situation, definitely." (T334, L40-47; T335, L1-10).

301 While Dr Gilheany stated in oral evidence that systems do break down and the ultimate fall-back position is the hospital emergency department, he does have systems in place for when he will be away after surgery:

"...I generally have some - I have two or three mechanisms. I have my staff that are a primary contact, I have registrars who are people that I'm involved with ... I have colleagues who I contact prior to my leaving and I let them know that I'm going to be gone and I request their permission that my staff and/or my registrars can contact them if necessary about a patient and request that they'll be prepared to look after those patients...if needed, and beyond that, throughout the operative, peri operative protocol I make it very plain to patients that:

'By the nature of human frailty I may not be available, some of these other connections may not be available, do not wait if you are in any sort of trouble; Emergency Department, GP office, seek further medical attention'..." (T707, L31-44).

302 Particular 20 claims that the practitioner failed to make appropriate arrangements for Patient B to have access to adequate surgical, medical and nursing care immediately after the second procedure when he would be not easily accessible over the Easter break.

303 Although the practitioner strenuously argued otherwise, he did not make appropriate aftercare arrangements for Patient B over the Easter period. Handing a patient some post-operative instructions that tell the patient to ring the surgery or the practitioner's mobile, and then to recommend the nearest hospital emergency department is insufficient, especially for a high risk patient who has undergone surgery which is not mainstream. Further, the practitioner was not contactable for some three days.

304 Particulars 19 and 20 are proved to the requisite standard.

Particular 21 - Did the practitioner provide adequate post-operative advice, including advice not to smoke?

Smoking

305 As considered in the treatment of particular 11, the Tribunal cannot be comfortably satisfied on the balance of probabilities that the practitioner failed to give adequate advice with respect to smoking, and this extends to post-operative advice.

306 Even after all that Patient B went through with the second surgery she continued to smoke after her corrective surgery with Dr Sullivan in 2011, Dr Sullivan's notes less than a month later indicating she was smoking.

307 Mr Tillotson asserts in his report that special instructions concerning refraining from smoking should have been added to the post-operative instruction sheet (CV2, Tab 34, p.6).

308 As mentioned elsewhere in these reasons, Dr Lunz stated that the a patient should cease smoking three months prior to surgery.

309 Dr Gilheany, podiatric surgeon expert witness for the practitioner, disagrees with this standard in his report dated 12.04.2013 (RV2, Tab 62, p.2). He advises on a period of cessation of smoking as long as possible pre-operatively, explaining that healing will be compromised if smoking is not ceased at a minimum of twenty-four hours prior to surgery.

310 Patient A had had many surgeries and claimed that he had never been told not to smoke.

311 Patient B claims that the practitioner told her to cut down a bit before the surgery.

312 It would seem on just this small sampling of opinion that there are different approaches taken by different surgeons.

313 As with particular 11 which considered pre-operative instructions to cease smoking, the Tribunal cannot be comfortably satisfied that the practitioner failed to give adequate warnings concerning the risks of smoking post-operatively.

Post-operative instructions

314 The instructions for post-operative care (Exhibit B) say that if there is excessive bleeding or the dressings feel like they are cutting off the circulation that the practitioner should be contacted, and if you can't contact the practitioner's rooms, then the outer bandage may be removed. Patient B did not do this after the second surgery until instructed to do so by the practitioner on the telephone on Easter Sunday night.

315 Dr Lunz comments that if Patient B's assertions in her statement are correct, that is, that the practitioner failed to advise her of the possible surgical consequences which might occur in her particular case at the time of both of her procedures, then the standard of care exercised by the practitioner fell below that expected of a practitioner of equivalent training (CV2, Tab 34, p.6).

316 With respect to the second procedure, Mr Tillotson concluded that the post-operative management was inadequate and inappropriate because:

1. The surgery was scheduled too close to public holidays and he was to be away over Easter.

2. He failed to arrange for a colleague to cover his post-surgical patients in his absence.

3. Despite the symptoms and clinical signs which presented and indicated severe vascular occlusion to the right first and third toes, and in light of Patient B's past history and general health issues, it took a total of eight days until the specialist appointment.

4. Apart from the level and type of pain, the practitioner failed to recognise the seriousness and/or significance of the blistering third toe, which should have rung alarm bells of vascular occlusion.

317 These matters, considered within the whole picture, cause Mr Tillotson to conclude that the departure from the standard to be significantly below what would normally be considered acceptable under the circumstances of this case.

318 Dr Sullivan, treating orthopaedic surgeon for Patient B, opines in his report of 4 May, 2012, that she "sustained a number of consequences as a result of no-one being available to deal with any complications over the Easter period..." (CV2, Tab 37, p.2).

319 Dr Sullivan's report of 25 July, 2012, prepared for the purposes of civil proceedings, reads:

"It is my opinion that Mr Bours failed to arrange for appropriate postoperative care and that this was below a reasonable standard of care..."

320 Dr Gilheany, as regards the immediate post-operative observations, finds no concerns with conduct of Patient B's case (RV2, Tab62, p.1). In further considering this matter in a letter dated 30.08.2013 to the practitioner's counsel, he states:

"...My observation in respect to these issues is that the patient compliance with instructions remains a significant factor in the sequence of events which lead to an unfortunate clinical outcome..." (RV2, Tab 64).

It is noted again that Dr Gilheany did not have the benefit of the patient statements in preparing his report.

321 It is agreed that in the phone call on Easter Sunday evening the practitioner asked that the toes be pinched to see if the colour returned. The Tribunal considers that asking family members to check the integrity of the blood supply to toes after surgery is dubious care.

322 Associate Professor Bryant makes two additional criticisms of the aftercare advice.

323 Firstly, she considers that although the written post-operative instructions seem adequate, the direction to apply ice packs to the operated site for twenty minutes at a time would have been inadvisable for Patient B, due to the risk of it causing vasoconstriction. Indeed, the practitioner's notes of 08.04.2010, some eight days after the surgery indicate "no ice".

324 Secondly, she notes that the practitioner's referral for vascular assessment did not occur until 08.04.2010, rather than on first examination on 06.04.2010.

325 In summary, the Tribunal finds that the general post-operative information instructions were reasonable, and that the post-operative advice, generally, was appropriate for the first surgery. We consider the failure to modify those instructions to remove the advice to use ice packs was, at best, an oversight. We do not have any evidence as to whether Patient B actually did use icepacks.

326 We find that the post-operative advice with respect to the second surgery was inadequate due to lack of proper advice for the contingency of the practitioner being unavailable to deal with concerns or complications if they arose over the Easter weekend. Further, the delay in arranging the vascular consultation was a significant failure in an emergency situation where, to coin a phrase, 'time is tissue'.

327 Weighing all of these matters the Tribunal finds that the practitioner failed to provide Patient B with an adequate level of post-operative advice relevant to her surgeries, and particular 21 is thereby proved to our comfortable satisfaction.

328 As regards Patient B, the Tribunal finds particulars 9a), 10a), 9e), 10e), 11, 15, 19, 20, and 21 established, being nine of the nineteen particulars pleaded in relation to this patient.

PATIENT C

Patient C generally

329 Patient C was, at the time of consulting the practitioner, a sixty-five year old woman. The practitioner came to her knowledge on the recommendation of her beautician, who thought the practitioner might be able to assist her with the treatment of a fungal nail infection with a special laser treatment.

330 After the laser treatment at some time in November, 2010, the practitioner advised Patient C that he could fix a bunion for her on her left big toe. It is Patient C's evidence that she did not make any enquiry of the practitioner with respect to any foot deformities, but that the information was unsolicited. She had undergone surgery for a bunion removal on the right foot some thirty years earlier.

331 Patient C's statement reads:

"I did not go into this consultation with an expectation that I would discuss my bunion with Mr Bours. I was aware of it, it bothered me at times but not enough for me to see anyone about it or have anything done about it.

Mr Bours said words to the effect of, "the procedure would be a day surgery procedure in a clinic near your home. It would be key hole surgery and you won't have a plaster." He explained that he had been to American (sic) and that they were now doing this type of procedure with minimal surgery. He explained that I would have a couple of small incisions to my left big toe only. I consented at that time to have the surgery on January 19, 2011, so that I would be heeled (sic) for my daughter's wedding on 26 March, 2011...." (CV 3, Tab 44, p2).

332 There was some discussion of performing surgery on both feet at once, and this, indeed appeared on the consent form, but Patient C decided not to do this and it was struck out on the document prior to surgery.

333 The essence of the complaint with respect to Patient C is the unrealistic expectations allegedly engendered by the practitioner in offering the surgery at the given time, particularly with respect to pain and discomfort and recovery period. Patient C was preparing for her daughter's wedding in late March, and, the HCCC argues, could not have been given full and realistic disclosure of the extent of pain and recovery. If it had been given, it is simply not realistic that she would have scheduled the surgery some nine weeks before the wedding. Beyond that, she had booked an overseas trip in May, also, the HCCC suggests, an indicator of the unlikeliness of proper provision of information and full disclosure as to the extent of the procedure and recovery time.

334 It is Patient C's evidence that the practitioner told her she would be wearing high heels at her daughter's wedding. The practitioner states that he had no knowledge of the wedding, only the trip in May.

335 Day surgery took place on 19 January, 2011. Patient C reports being in an excruciating pain after the nerve block wore off from the surgery (when she was at home that night). It was her firm belief that she was only having surgery on the great toe, not the lesser toes. She considered that she was having a minor procedure, particularly given the conversations about minimal incision, minimal invasion, and it being a 'keyhole' procedure.

336 Patient C attended the treatment rooms of the practitioner the next day, at his request, after she accidentally got the foot dressing wet:

"Later on 20 January 2011 my friend took me into the Clinic. I consulted with Mr Bours and he told me I should not have wet my foot. I then said I had never experience (sic) such severe pain. He replied with words to the effect, "it's to be expected is like a car has driven over your foot (sic). You have 20 broken bones across the top of your foot." I was shocked to find out that I had 20 broken bones. I questioned Mr Bours about why I had twenty broken bones and he replied with words to the effect of, "I straightened all your toes and now you have a perfect foot.

After I heard this I accepted that I would have to put up with the pain as it was newly done and I thought I would have this amazing foot in time. He told me the swelling would take a couple of months to go down. This was the first time he advised me that my post-operative recovery was going to take a couple of months. I was shocked to know that the swelling was going to take that long to go down. I was not given any other post operative instructions about swelling. I only knew that later on down the track I would need physiotherapy. Mr Bours did not say anything about the pin in my left big toe at this consultation...

...During either the 8 February or 1 March consultation Mr Bours said words to the effect of, "you are not going to heel (sic) as quickly as when you were younger. It will take one month for every decade of your age for the pain, swelling to go away." This meant that as I was 65 year old, it would take over 6 months to recover from this. This was the first time I was aware that it would take this long to recover from the procedure. Previously Mr Bours had assured me that I would be recovered and better in time for my daughter's wedding in March 2011..." (CV3, Tab 43, Statement dated 9 December, 2011).

337 On 28 March 2011 Patient C's general practitioner referred her to Dr Martin Sullivan, orthopaedic surgeon, for advice. His letter of that date reads:

"Thank you for seeing the above patient who presented with having had bunion surgery which has left her with a grossly swollen foot 9 weeks after surgery..." (CV3, Tab 47)

338 Dr Sullivan ultimately performed corrective surgery on the left foot, including removing a pin from the big toe on 19 September, 2011.

339 In her statement dated 18 March, 2013 Patient C described her status thus:

"Since the surgery by Mr Bours:

• I have constant pain in my left foot, which is particularly notable in the afternoons, at which time the lower part of my left foot becomes swollen. I usually take paracetamol to assist with the pain.
• I am unable to run and be physically active with my grandchildren, as I did prior to the surgery.
• I am unable to wear high heel shoes at all.
• I practice yoga regularly (3 days a week) and my practice has been inhibited by the limited range of motion and fused bones in my left foot.
• My feet are two different sizes, with the left foot being a size smaller than my right foot.
• Since the bunion surgery, my left big toenail is badly distorted and I now have an acrylic nail placed on that toe every six weeks.
• I used to play golf regularly but found that I am now unable to walk around the golf course due to the pain in my left foot.
• I have visited Dr Westmore, a psychiatrist, around every 3 months since April, 2011 due to the emotional repercussions resulting from the surgery on my left foot.

340 The practitioner makes a twofold response to Patient C's complaints. Firstly, he claims that he did not know of the upcoming wedding in March, but only of the planned overseas trip for May. Secondly, that Patient C was not compliant with after care - that she was walking up and down a spiral staircase on holidays after the surgery, that she was failing to rest as her husband had not known she was planning to have the surgery and was unsupportive, and that she was careless in getting the dressings wet the day after the surgery.

341 It must be said that Patient C was not a helpful witness during the hearing. She had little recollection of many of the details surrounding the lead up to the procedures and the ensuing recovery time. Indeed, the complainant's materials contain a statement from Patient C dated 13 August, 2012 (CV 3, Tab 43, p.6):

"I ... am a bit vague with recall of after surgery instructions. At the time I was in so much pain it all becomes a blur... I cannot accurately remember all that went on at the time of discharge..."

342 However, her statement made on 9.12.11, closer to the events in question, she confirmed in oral evidence, was made truthfully.

343 There are within Patient C's evidence, though, features which commend it to the Tribunal. The statement made closer to the relevant events contains some detail. There is an internal consistency in the evidence that resonates with the evidence given by the other patients, and there are certain objective facts, such as the planning of the surgery just nine weeks before her daughter's wedding, that are telling.

Particular 22 - Was the advice to have surgery inappropriate?

344 In short, the Tribunal does not consider it inappropriate for Dr Bours to have raised with Patient C the issues concerning the foot deformities apparent on physical examination, albeit that the initial purpose of the consultation was for the treatment of toenail fungus.

345 The HCCC's own expert, Mr Tillotson, stated in his report (CV4, Tab 68, 18.07.2012) that if Patient C openly discussed the pain and discomfort in her feet then, as a surgeon, it would be expected that he would discuss a surgical solution with the intention of reducing these symptoms. To do so would be to meet the standard of what is reasonably expected of a practitioner of an equivalent level of training and experience. However, the converse would be true if Patient C felt pressured to undergo surgery, and such conduct would be significantly below the expected standard.

346 Thus, Mr Tillotson concurs with the practitioner that, as a foot surgeon, when presented with a patient complaining of pain associated with the bunions and accompanying lesser toe deformities, it would be appropriate to discuss the role of surgery to correct them. However, the essential question [for Patients C and D] is whether the intensity or frequency of the associated pain, and the degree of deformity, "was such that the level of reconstructive surgery suggested was essentially the only option of treatment for these patients" (CV4, Tab 70, Report dated 14.10.2012).

347 Patient C stated in oral evidence that her reason for having the foot surgery was cosmetic. In light of this, conversations, whether or not they occurred, as to the helpfulness or otherwise of non-surgical measures to alleviate pain and discomfort, become less significant.

348 On balance, the Tribunal cannot find Particular 22 proved to the requisite standard.

Particulars 23 and 25 - Did the practitioner fail to give adequate information about risks and complications and post-operative matters? Did he give insufficient information to understand the procedures to be performed?

349 The practitioner relies on his clinical notes as supporting the contention that he provided Patient C with adequate information regarding risks, complications of procedures and the likely length of recovery time, the persistence and severity of post-surgery pain, disability and discomfort, and the length of time when she would be unable to walk without discomfort or wear normal footwear or return to work (particular 23). He also relies on his notes with respect to the allegation that he failed to provide sufficient information to ensure that Patient C understood the procedures which were to be performed (Particular 25).

350 As aforesaid, the Tribunal cannot be confident, on the balance of the evidence which reveals numerous inconsistencies in the practitioner's clinical notes, that they are a reliable record of the interactions with the patient as they occurred.

351 The practitioner's clinical notes state: "discussed risks and complications esp. swelling and delayed healing and return of deformity..."

352 The evidence of Patient C is very different. It is her evidence that she went into the surgery believing that she was having a minor procedure, described as 'minimally invasive' with 'minimal incision'. Clearly that the procedure performed had the potential for extreme pain, complications and protracted difficulties in the healing and recovery process. Whether or not Patient C was naïve, as the practitioner might argue, it cannot be denied that the onus is upon the latter to communicate the fullness of the potential surgical and post-operative experience. It is the practitioner who is in possession of the information, not the patient. The duty is upon him to communicate same plainly to her.

353 Two undeniable objective facts render extremely unlikely the practitioner's claims as to his diligence in making such communications. Patient C underwent surgery on 19 January, 2011. Her daughter's wedding was to occur on 28 March, 2011. The patient was sixty-five years of age at the time of the surgery. The practitioner was adamant throughout the hearing that a person might expect one month of recovery time per decade of age. Indeed, he sought confirmation from this in evidence from expert witnesses.

354 Patient C was adamant that the first time she was given this information by the practitioner was when the dye was cast and she was in the post-operative phase. It defies logic that, had the practitioner properly and plainly made this known, whether or not he was aware of the impending nuptials, Patient C would have proceeded with the surgery in January, which, by her account, was for cosmetic purposes.

355 With respect to the notes, which convey that disclosure of potential risks and complications occurred pre-operatively, it is curious that the entry for the appointment of 24 March, 2011, just two days prior to the wedding, makes no mention of this upcoming event and the impact of slow recovery on same. However, that file entry mentions concerns about the more distant problem of an overseas trip looming some two months later in May.

356 In cross-examination the practitioner made the following concession:

Q. Well one of her psycho/social needs was to attend her daughter's wedding in fashion shoes, wasn't it?

A. Well yeah, and you know it was unfortunate that that wasn't either conveyed. Now whether it slipped her mind I don't know.

Q. Isn't it possible that what you said was that the surgery she would have was going to result in such little postoperative problems that she would be up and about such that she would be in fashion shoes by late March with no problem, or words to that effect?

A. Possibly...(T648. L22-30)

357 In the final analysis, it is not critical to the Tribunal whether Patient C did, indeed, communicate at the time of planning the surgery that there were two significant upcoming events that would suffer considerably were she still in recovery stage from a foot surgery. If the practitioner had been frank about what he later claimed were very standard expected recovery times, then a reasonable person would not have proceeded to have the surgery at the time when it occurred.

358 The practitioner's expert witness, Dr Salerno, agreed in his report (dated 4 February, 2012, RV82) with the his surgical assessment of Patient C and the surgical plan proposed, with the exception that he questioned the need for fusion of the interphalangeal joint of the hallux. He agreed that the procedure of a decompressive osteotomy in the form of a modified Green-Waterman osteotomy was an acceptable procedure for the stage of arthritis and deformity affecting the first MTPJ. It was not, however, the only choice, being one among a choice of eight other possible surgical procedures proffered by Dr Salerno. For such surgery it could take as long as twelve months for the patient's gait to return to normal. It would be expected that the left foot would be shorter due to the surgery, however, a closer match in foot size might be expected if surgery were performed on the other foot. Global oedoma (swelling) "is entirely expected at this time following the surgery, and potentially for a few months longer".

359 Dr Salerno deemed that physiotherapy was appropriately prescribed by the practitioner, but that it, in fact, seems to have aggravated recovery.

360 Dr Salerno, agreed with Dr Sullivan that a revision surgery may be required because the toe is in a slightly flexed position and the screw was not in the bone. His report, dated 4 February, 2012, reads:

"A revision procedure may be required. I do not feel that enough time has elapsed to allow the foot to settle down and for a normal return to a normal gait pattern. I agree that the toe is in a slightly flexed position. This malposition was not so apparent on the post-operative clinical photographs made available to me. It is highly likely that the screw will need to be removed because of the distal protrubence along with a small piece of bone at the dorsal base of the toe. They are likely to be sites of discomfort in enclosed shoes and I believe that the additional procedures are best done once solid consolidation of the fusion has been determined. Hardware problems do occur and should be monitored for removal if problematic."

361 Apart from the observations that there may be a problem, it is of note that some eleven months after the surgery Dr Salerno claims that not enough time has elapsed to allow the foot to settle down. It is unlikely, given the timing of the wedding and the overseas trip, that Patient C was apprised prior to the surgery of the potential for difficult and protracted recovery time and complications.

362 Mr Tillotson, the expert witness for the HCCC, considers the issues in particulars 23 and 25 in his report. He states that because of the invasive nature of the procedures and the risks of post-operative complications with regard to multiple osteotomies and wound infection (which would be about the same whether using minimal incision or standard approach surgery), that it would be normal practice to discuss the possible consequences of the intended procedures with the patient prior to obtaining informed consent. If the account given by Patient C is correct, he concludes, the practitioner's conduct is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience, and would invite his strong criticism.

363 Accordingly, if he did not discuss the risks and consequences associated with multiple osteotomies and wire fixation then the standard was significantly below that expected. Conversely, if such explanation occurred, then the practitioner met the requisite standard.

364 As earlier outlined, it is the evidence of Patient C that she believed that the surgery was only on her big toe. She was shocked with the comments of the practitioner after the surgery that she had twenty broken bones in her foot, that it was the equivalent of her foot being run over by a car, and that there would be a month of recovery time for every decade of age.

365 The quote for the surgery dated 21.12.10 does refer to other toes in its prices for "Phalangeal Osteotomy" for 'L First, 2nd, 3rd, 4th, 5th' with item numbers, but it must be acknowledged that this language may mean little to the lay person. The practitioner claims that the pre-operative photos (the date of the photos is not clear) which show blue pen markings on the foot are an indication that Patient C knew the surgery would be more extensive than simply at the site of the grand toe.

366 The Tribunal finds particulars 23 and 25 proved on the balance of probabilities and to its comfortable satisfaction. The evidence of Patient C is preferred to that of the practitioner. The Tribunal is not convinced of the contemporaneous accuracy of the practitioner's notes. The expert evidence of Dr Salerno was prepared on the basis of the notes, x-rays and photographs, but without the benefit of patient statements. It is objectively unlikely that, if Patient C were properly informed and advised, that she would have scheduled the surgery at the given time.

367 Particulars 23 and 25 hit upon certain internal consistencies found in the accounts of the patients - that of potential risks and complications and recovery time being underplayed, and the capabilities of the surgery being overstated.

Particular 24 - Was the consent form inadequate?

368 The document referred to as a consent form is entitled "Referral for Admission" (CV3, Tab 46, p14). The writing on the form is difficult to read. The proposed procedures is not really legible, containing three words, the last of which being "reconstruction". It is later described in quite messy writing as "L bunionectomy IPJ FUSION 2345 digital 45* DISTAL [?] osteot". The procedure which was also originally planned for the right foot is scratched out from the form. The printed material essentially is an acknowledgement by the patient that other procedures may become necessary inter-operatively, that complications may occur, that she has had opportunity to ask questions and is satisfied with the information received from the surgeon, and that mental alertness may be impaired after the surgery and that she shouldn't drive for twenty-four hours.

369 The form is a fairly standard sort of generic consent form.

370 Mr Tillotson was critical of the consent form in its messiness and use of technical language. In oral evidence Mr Tillotson stated that he uses lay language to describe the medical procedures on consent forms, and that risks are stepped out on the forms.

The risk could be - dealing with the procedure, could be loss of blood supply to a digit, could be post-operative infection, could be exiting of the pin if it was driven through the apex of the toe, so infection, and well, loss of life, I mean it is - if it's under a general anaesthetic. (T266, L13-16)

371 What is clear from Mr Tillotson's evidence is that the consent form should reflect the information that has been passed to the patient and understood by them.

372 Although the consent form has difficulties in its messiness and use of technical language, the Tribunal cannot be comfortably satisfied that the consent form represents any significant departure from the usual standard of consent forms, and finds that this particular is not proved on the balance of probabilities.

Particular 26 - Did the practitioner fail to obtain informed consent?

373 The gravamen of this particular is the failure of the practitioner, on balance, to obtain informed consent. Although the Tribunal determined that particular 22 was not proved, it remains comfortably satisfied that particular 26 is proved by way of the particulars 23 and 25. As aforesaid, a properly obtained and executed consent form is simply evidence of consent, not the substance of consent. The evidence before the Tribunal indicates that the practitioner did not fully and properly communicate the relevant considerations to Patient C, or ensure the understanding of same.

374 The requirements of informed consent considered elsewhere in this reasons for decision are repeated for this particular, which is established to the requisite standard.

Particular 27 - Was the surgery scheduled at an inappropriate time?

375 Given the information stepped out above with respect to Patient C, the Tribunal finds this particular proved to its comfortable satisfaction in that the scheduling of the surgery in January 2011 was inappropriate given the family wedding at the end of March and the overseas trip for May 2011.

Particular 28 - Did the practitioner give adequate post-operative advice?

376 Particular 28 goes to the adequacy or otherwise of post-operative advice following the surgery.

377 Mr Tillotson gives in his report of 18 July, 2012 (CV4, Tab 68, the following view as to the appropriate standard of advice in the given circumstance:

"The usual standard procedure regarding informing the patient about possible post-operative complications is for the practitioner to, post operatively, explain once again the procedures performed and to explain to the patient the level of discomfort they are likely to experience, what is the usual and what is an unusual level of post operative discomfort they are likely to experience, how the discomfort may present itself and how to manage it. Also instructions that in the unlikely event that complications might arise as a consequence of the surgery these are the most likely warning signs to watch for and also to be given advice how to deal with them..."

378 After noting that the only post-operative advice evidenced in the clinical notes was to rest, Mr Tillotson expresses the view that if post-operative advice of the type expressed above was given, then the conduct would have been consistent with what was reasonably expected of a practitioner of an equivalent level of training or experience. If such advice were not given, then the conduct would be below the requisite standard.

379 It becomes, then, a question as to whether there is evidence of HCCC's contention that such proper post-operative advice was not given.

380 Patient C was a very unhelpful witness on this point. What seems clear from her evidence is that she thought she was having a minor procedure, that she was utterly aghast at the extent of the surgery and the degree of pain and swelling, and that she lost confidence in the practitioner immediately after the surgery.

381 She did not recall being given any information verbally by staff as to what to expect post-operatively. She did not remember anything about the discharge procedure. She did recall being shown a surgical shoe and a plastic bag (T114-5).

Q. Patient C, do you think you were very compliant with the instructions that you don't remember getting?

A. I don't recall. (T119. L21)

AND

"I don't recall the conversation about the length of time with postoperative care but I didn't expect to be in as much pain as I was in." (T119, L21)

382 The HCCC submits that the extent of Patient C's post-operative attendance at physiotherapy shows that she was a diligent patient, and that the practitioner's account that she was not compliant should not be accepted. Further, Patient C's haste in seeking an alternative opinion (nine weeks after surgery), is supportive of the conclusion of inadequate provision of post-surgical advice, which, it submits, should be seen in the context of absence of appropriate pre-operative advice.

383 The practitioner went to great pains throughout the hearing to seek to establish what the Tribunal deemed the rather irrelevant point of whether a surgeon had a professional obligation to send a patient back to the original treating surgeon after the patient had consulted them for a second opinion. Clearly it was the practitioner's opinion that, even if the patient refused to return and did not want the second surgeon to contact the original surgeon, that the second surgeon was obliged to refer them back and report back, even if it breached the patient's confidentiality to do so. This, of course, is nonsense.

384 But the flow-on from this argument was the position that the practitioner had, effectively, been cut off from the opportunity to provide proper post-operative advice where care had been usurped by second practitioner - in this case, Dr Sullivan.

385 This transfer of care to another surgeon does not present the Tribunal with any problem in dealing with this particular. Clearly, the practitioner can only be responsible for the adequacy of post-operative advice while the patient is under his care, and it is only that measure of advice that is being assessed.

386 Given the paucity of Patient C's recall and evidence around this particular, the Tribunal cannot be comfortably satisfied as to its proof on the balance of probabilities. The particular fails for lack of evidence.

387 To conclude with Patient C, particulars 23, 25, 26 and 27 are proved, being four of the seven agitated by the HCCC concerning this patient.

PATIENT D

Patient D generally

388 Patient D was a twenty-four year old woman when she first consulted the practitioner in relation to a toe fungus. She consulted him, like Patient C, as he had a quite rare laser machine for treating such problems.

389 She was advised by the practitioner that she didn't need the use of the laser machine as a topical preparation would suffice, but he went on to tell her she had a bunion on her left big toe and was likely to get one on her right toe in time. She advised that her bunion had not given her pain, but admitted to becoming footsore after a long time in very high stiletto heels.

390 Patient D reports that the practitioner advised her that although she didn't have problems then, that if she didn't have the bunions surgically treated she would develop problems by the time she was around thirty.

391 The practitioner, during that consultation, examined Patient D's toes and told her that as she had flexible toe joints she needed to have them fused to avoid hammer toes.

392 In her statement Patient D relates that the practitioner said words to the effect that 'the surgery is a walk in the park and there is a two week recovery', a statement the practitioner denies.

393 The practitioner then showed her pictures of deformed feet as an indication of what could happen when she was older. She was also told that treatment would not be as effective if she didn't attend to it now, and that foot pain would soon begin. She was also told that it was easier for a young woman to undergo this procedure before she had children, as it was much more difficult to take the required post-surgical rest when one had the care of little ones to consider. These conversations are not disputed.

394 Patient D also reports in her statement (CV3, Tab 55, p.2) that she was shown pictures of someone's bunions before surgery. They were, she said, a lot worse than hers. The practitioner said that her feet would end up looking like that. Patient D was fearful of this prospect. She asked if there was any other treatment to which the practitioner reportedly replied that surgery was the only solution. In oral evidence Patient D expanded on this, saying that the practitioner told her that conservative measures (orthoses) would not be feasible due to her fashion sense with shoes (T215, L42-3).

395 Patient D describes being quite horrified by the pictures of contorted feet that she was shown. She was also shown some sort of testimonial video of an ex-patient, possibly from YouTube. In one of them someone was declaring praise for the results of similar surgery. There were videos of post-operative patients running and talking about being back in the gym after surgery, and so on

396 In oral evidence Patient D said that the practitioner instilled fear in her. In describing the images he showed her she said:

"They were horrific, they were like toes that were really like bent over each other and bent and the toes weren't pleasant to look at and that image still stands in my head, like it's probably the determinant factor of why I did the surgery actually..." (T237, L27-9)

397 Patient D says that when she asked the practitioner what could go wrong with the surgery he said words to the effect of, 'nothing can go wrong, I have never had anything go wrong with my surgeries'. The practitioner denies that he said this. According to Patient D there was no verbal information given about any possible complications.

398 By the end of the first consultation, originally for a nail fungus which was treatable with application of a solution, Patient D had agreed to have surgery to remove the bunions on her left big toe, her right big toe fused to avoid bunions, and all the other toes fused to avoid hammer toes. She booked in for surgery for September, 2011, but she later brought this time forward to suit her accountancy study/work schedule.

399 Essentially, what the practitioner was proposing amounted to, from Patient D's perspective, pre-emptive surgery. During the hearing the practitioner advanced the argument that Patient D had "incipient" foot problems, or "subclinical" (underlying) pathology, which would soon manifest with pain and deformity.

400 A few days later Patient D attended another consultation to discuss the procedures further. She reports that again she received the information that there was no other option. When she asked about possible complications the practitioner advised that some standard documents would be sent to her and that a signature was required.

401 Patient D received the documents by email on 06.04.2011. One was a surgical consent form, which she does not recall signing. She read in those documents about complications, but she claims that she did not take them seriously as the practitioner told her he had never had a complication. It is noted that Patient D's surgery was the last in time of the four patients considered in the Complaint before the Tribunal.

402 Surgery was performed at Darlinghurst Day Surgery on 18.04.2011. After the surgery Patient D was given a prescription for Digesic, Voltaren and antibiotics by the anaesthetist. She was also given a list of post-operative instructions.

403 The first post-operative appointment was on 21.04.2011. The second was about a fortnight later. The practitioner examined Patient D and said things were healing well.

404 At the next appointment a week later Patient D advised the practitioner that she was experiencing a lot of pain and swelling and that she couldn't move her toes. He told her that this was normal, which she accepted, and she continued to follow post-operative instructions.

405 Physiotherapy began with Helen Gibson, in the rooms attached to the practitioner's surgery. She noted that Patient D's toes were a bit stiff, especially the left toe joint. Home exercises were given, which Patient D found difficult due to the pain they caused.

406 Pain persisted, as did appointments with the physiotherapist and the practitioner. The practitioner would forcefully move the toe joints which was extremely painful. He continued to say that all was normal.

407 During one appointment the practitioner gave Patient D a cortisone injection in the foot (part of Complaint 3). This relieved the pain and increased movement for only a few days. Although the practitioner denied in oral testimony that he had administered the cortisone injection, he had admitted to it in the official interview with the HCCC on 22.12.2011. The physiotherapist in his practice had also made an entry to this effect in the notes at the relevant time.

408 Patient D continued to see the practitioner due to pain and lack of movement in May and June 2011. Ultimately the practitioner ordered an x-ray, upon receipt of which he advised Patient D that she had an overgrown joint, caused by her joints healing too fast. He advised that he needed to surgically shave off the extra bone as it was preventing movement in the left big toe. He said it was an easy procedure.

409 Patient D states that in that consultation the practitioner represented that she would soon be back to normal activities, including running and wearing four inch heels within weeks, and that the pain would be gone.

410 Surgery was performed on 17 June, 2011 to shave the bone in the left big toe joint. At the point of departure the practitioner gave Patient D a strip of Digesic pain killers (part of Complaint Three). She did not have a prescription for this medication. The practitioner refutes that he issued this medication.

411 The pain did not subside subsequent to the second surgery. Patient D continued to consult the practitioner and he continued to reassure her that all was normal.

412 The pain was becoming unbearable. In June or July 2011 Patient D consulted the practitioner and he advised that a third surgery was required as she had chipped bones in between the joints which needed to be removed, and more bone shaving was required on the left toe.

413 Patient D had lost confidence in the practitioner by this time and refused the third proposed surgery.

414 She consulted with Dr Roderick Kuo, orthopaedic foot surgeon. Dr Kuo explained that the pain and swelling was caused by osteoarthritis which had developed in the left foot after the surgery. Also, the toe joint was damaged and this was contributing to the pain. Another surgery would be required to remove the loose fragments.

415 Patient D agreed to Dr Kuo performing the surgery, which occurred on 29 August, 2011. Prior to this she advised the practitioner's receptionist of her plans and asked for her medical records, which were emailed to her.

416 Dr Kuo removed the loose fragments from the left big toe, but was unable to fix osteoarthritis or the other fused toes that Patient D could not move.

417 Patient D has problems walking. She can no longer run for distances, and she cannot wear high heels. Adjustments to her gait have caused other leg problems. Her footwear choices are very limited. She reports periods of depression at the prospect of facing lifetime foot pain from such a young age. She has been under the care of a psychiatrist.

418 The practitioner describes Patient D as a rather 'nervy' person who was not patient with the treatment regime as it unfolded. Dr Kuo agreed that she does present anxiously at times.

419 The Tribunal found Patient D to be a credible witness with a commitment to truthfulness. She was obviously unhappy with the practitioner, and had been through a great deal of worry and stress over the events that had unravelled. However, the Tribunal had no cause to disbelieve her testimony.

Particular 29 - Did the practitioner inappropriately recommend surgery?

420 The Tribunal finds this particular proved on the balance of probabilities.

421 The particular asserts that the recommendation for surgery was inappropriate due to the lack of significant foot problems on presentation, and that the extent of toe deformity did not warrant the extensive surgical intervention. Further, the offer of surgery was not preceded by exploration, trial or offer, of non-surgical treatments.

422 The practitioner's defence of this particular is that it was appropriate to offer surgery to Patient D to prevent future deformity and pain. He pointed to a school of thought that bunions are a progressive condition and it is preferable to operate before the deterioration of the condition of the foot diminishes the likely success of later surgery. The practitioner pointed also to the presence of a family history of the condition.

423 The HCCC submits that the Tribunal should find this particular proved on the basis of the credibility of the witness and the evidence of Mr Tillotson, Dr Kuo, and Dr Salerno.

424 Mr Tillotson expresses in his report his view that if Patient D did not indicate at the first appointment that she had discomfort it would have been inappropriate to suggest surgery for this young woman:

"In my opinion, if [Patient D] gave no indication at her earliest consultation with Paul Bours that she had discomfort in her first toe joints and/or lesser toes ... then I consider it inappropriate to suggest that they required surgery at this point of her life and that this standard was below what is reasonably expected of a practitioner of an equivalent level of training or experience.

The usual standard reasonably expected of a practitioner of an equivalent level of training and/or experience in such cases is to advise the patient that, due to the significant risks associated with surgical intervention, a surgical solution should be reserved as a last resort to relieve extreme discomfort and/or to reduce the need to carry out more extensive procedures should the deformity begin to affect associated structures. Another general reason for determining the optimum time for surgery based upon the discomfort levels in such cases is that whilst the surgical intervention may create a more "normal appearance" the mechanical function of the structures operated upon, whilst they look "normal" may not necessarily "function normally" post operatively due to the surgical intervention and altered joint mechanics. It is my experience that surgery performed upon asymptomatic joint structures can result I post-surgical pain simply as a consequence of doing the procedure for cosmetic reasons (CV4, Tab 68, p.3-4).

425 Mr Tillotson would find otherwise if it were established that Patient D voluntarily shared that she had serious pain and a family history that worried her and was requesting information as to surgical correction of bunions:

"...if [Patient D] did voluntarily indicate to Paul Bours that she had significant pain and discomfort in her bunions and that there was a family history that she was concerned about and that she requested information with regard to any surgical intervention to correct the deformities then it would be appropriate for Paul Bours to enter into detailed discussions regarding the aetiology of the condition, its mechanism of pathology and the surgical procedures required to correct the deformities. Following informed consent, then it would be appropriate to proceed with corrective surgery based upon the criteria mentioned by me earlier and I consider this to be the standard reasonably expected of a practitioner of an equivalent level of training and experience.

As a surgeon it would be neglectful not to discuss the place of surgical management in a patient presenting with significant pain/discomfort in such a case. That said... I consider that all not-surgical approaches should be explored prior to suggesting surgical intervention. This would include the use of functional foot orthoses therapy in an attempt to settle any symptoms (other than extreme discomfort) associated with the abnormal foot mechanics linked to the deformity" (CV4, Tab 68, p.4).

426 Further, Mr Tillotson opines that the x-rays and clinical photographs of Patient D's feet do not indicate the degree of deformity diagnosed by the practitioner, and disputes that the extensive surgical intervention that was performed was, in fact, warranted. Mr Tillotson considers that the type and nature of surgery performed amounted to a departure from the standard of care which would be suggested by a practitioner of equivalent training and experience. As such the standard of choice of procedures was significantly below acceptable standards for such a case (CV4, Tab 68, p.7).

427 Dr Kuo disagreed with the appropriateness of the offer of surgery and of the type of surgery performed on Patient D. He gave evidence that, in his view, a bunion has to be quite severe before he would operate, and such surgery should be preceded by a lot of treatment with shoe modification. He defined "severe" as encompassing pain and measurable deformity (T397-8).

428 Dr Salerno conceded in oral evidence that surgery was never the only option in a case of a bunion involving no pain for a person in their twenties (T791).

429 The practitioner submits that the Tribunal should not find this particular proved on the basis of his clinical notes, the evidence of Drs Gilheany and Salerno, and an article referred to in a report by Dr Gilheaney of 30.08.2013 (RV3, Tab 102) and which was handed up in the hearing: Doty, Coughlin et al, "Articular Chondral Damage of the First Metatarsal Head and Sesamoids: Analysis of Cadaver Hallux Valgus", 2013, American Orthopaedic Foot and Ankle Society, http://fai.sagepub/content/34/8/1090 (MFI 19).

430 As stated in his report of 30.08.2013, referring to the above study, Dr Gilheany is a proponent of the theory that pain is not a pre-requisite for surgery:

"...there is evidence which supports early surgical intervention in forefoot deformity. The presence of 'significant pain' is not a specific pre-operative requirement. This has most recently been supported by a paper which concludes that 'early intervention ...may diminish degenerative changes'"

431 The researchers in this study examined thirty-nine cadaver phalangeal joints and compared what damage was visible on x-ray to what damage was visible when dissected. They note extra damage on dissection that wasn't discernible on the x-ray. From this the finding the hypothesis is that early surgery may prevent further damage from occurring. The tribunal notes that there were no trials or case reports attached to this study, and that an equally valid proposal might, hypothetically, have been that other approaches, such as using orthotic devices or taking glucosamine tables could minimise damage. The Tribunal does not afford this research much weight in the argument put by the practitioner for surgery in cases such as Patient D's.

432 Dr Salerno described "incipient hallux abductor valgus" as a progressive disorder. He agreed in oral testimony with the practitioner that there was some evidence to suggest that hallux abductor valgus (bunion) may potentially be addressed (surgically) before any "clinical manifestation" (T775).

433 In response to a Tribunal question Dr Salerno advised that about 25% of Australians have bunions, and that not all of them would require surgery:

Q. What about people who have no pain and don't have any trouble walking, would they be likely to be requiring an operation?

A. I wouldn't necessarily operate on those individuals depending on the severity of deformity and what other presentations I guess accompany that individual. (T801, L9-13)

434 Dr Gilheany said that 30-40% of the population has this condition (T726, L2-4). He said that the condition was progressive and that he thought it was acceptable practice to operate on someone with a stage two or three bunion even if they were not experiencing pain.

435 On balance, the Tribunal prefers the evidence proffered by the HCCC in its submission. In the circumstances of Patient D's initial consultation for fungal infection, presenting with no pain, and having a very mild degree of deformity, non-surgical options should have been clearly explored, offered and trialled prior to planning the procedures.

436 We can to and fro with differing expert opinions, but the fact remains that clearly there was a risk of serious deterioration in foot health as a result of the surgery. This, in fact, was the actual and unfortunate experience of Patient D. The offer of surgery as the sole means of managing any present or future foot problems was inappropriate because the deformity was very minor. Conservative therapies had not been adequately offered or trialled and the purported 'preventative' nature of the intervention was not well-founded in clinical evidence or well-established in regular practice.

437 Particular 29 is proved on the evidence to the Tribunal's comfortable satisfaction.

Particular 30 - Did the practitioner give inadequate information about risks and complications and post-operative matters?

438 We find that the practitioner did not give adequate information about risks and complications and post-operative matters, and the Tribunal is comfortably satisfied that particular 30 is established on the evidence.

439 Much of the relevant information is given in the general information recorded above about Patient D's general experience.

440 There is, however, a hurdle to be overcome in relation to this particular, and that hurdle is the listing of risks and complications on the consent form.

441 The consent form reads:

"Although most patients obtain good results from their foot surgery and rarely experience any long-term complications, I am aware that complications can sometimes occur from surgical intervention and any surgery carries an element of risk. Such complications include, but are not limited to, the following:

• Blood clots forming in veins, which can lead to permanent swelling and/or other significant problems.
• Post-operative infections, which can permanently damage tissues in the body.
• Joint instability and/or weakness, which can cause permanent lack of function and difficulty in walking.
• Temporary or permanent post-operative pain and or selling which does not respond to further treatment.
• Thick scarring or contracture of wounds or failure of bones or soft tissue to heal properly.
• Temporary or permanent joint stiffness, mal-alignment of feet or toes, or return of deformity." (CV3, Tab 55, p.15)

442 While this appears a fulsome treatise on the potential risks of the surgery, it is negated by the practitioner's verbal representations that diminished the seriousness of these warnings in the mind of Patient D.

443 The Tribunal accepts Patient D's evidence that the practitioner said that there were no risks and that he had not had complications in this surgery with other patients. The benefits were magnified and the risks minimised, as accords with the experience of Patients A, B and C.

444 The HCCC relies on the report of Mr Tillotson:

"...If [Patient D's] account of the information she received from Paul Bours is accurate (ie that she was informed that 'nothing can go wrong, I have never had anything go wrong with my surgeries) despite being given written information regarding possible complication of surgery on her 'Surgical/Procedure Consent' form, I consider Paul Bours' may have expressed a false level of safety and security to [Patient D], in relation to earlier consultations, with regard to the level of difficulty and seriousness of the surgeries he was proposing to perform on her. That being the case I consider his conduct, in this regard, to significantly fall below the standard reasonably expected of a practitioner of an equivalent level of training or experience in this case."

445 The Tribunal notes that the practitioner's notes contain entries to the effect that risks and benefits of MIS were explained (09.03.2011). The notes of 04.04.2011 state "understands risks and complications including return of deformity and infection, scar, hypersensitivity, CRPS and possible altered gait". In his interview with the HCCC the practitioner advised that he did not record in his clinical notes that risks and complications had been explained. We find these entries, again, unusually detailed and infer a high likelihood that they were added to the notes at some time after complaints were made. In short, we find the notes unreliable.

446 The HCCC further submits that Patient D's reactions to the post-surgical difficulties, of themselves, indicate that she was not prepared by the practitioner that they were within the range of possibilities.

447 The practitioner submits that we should prefer his version based on his clinical records, Patient D's admissions in oral evidence that he took a medical history from her and she was able to ask questions, the time spent in consultation, and that there was forty days between initial consultation and the surgery.

448 The fact of taking a medical history and that there was adequate provision of consultation time does not assure us that the proper, balanced information was given to Patient D.

449 On balance, we find this particular proved, preferring the submission of the HCCC. The practitioner failed to provide Patient D with adequate information regarding the risks, complications of the procedures and the likely length of recovery time. He did not give her proper warning about the possibility of persistent and sever post-surgery pain, disability and discomfort, inability to walk properly, or wear proper footwear.

Particular 31 - Was the consent form inadequate?

450 This particular, common to those for the other patients, is not proved. We repeat the reasoning given for Patients A, B, and C as applying to Patient D.

Particular 32 - Did the practitioner fail to obtain informed consent?

451 This question has been canvassed for all of the patients. While we will not repeat here the elements of informed consent, they apply, naturally, as they do to the other patients.

452 The critical feature of the Tribunal's finding that the practitioner failed to obtain informed consent, once again, is the his misrepresentations about the risks.

453 As outlined above, Patient D concedes she received paperwork prior to the surgery and that the consent form contained some information about risks.

454 However, the practitioner misrepresented his own documentation. If a patient is given information that outlines risks, but then the practitioner misrepresents the probability or reality of those risks, then there is a defect in consent.

455 Other areas of the law recognise that when a person misrepresents the effect of important documents that they have created as part of agreements from which they stand to benefit, the extent to which they can rely on those documents is diminished.

456 If a health practitioner misrepresents the reality of risks, as well as the occurrence of complications in their practice in the past, then they should not be allowed to point to paperwork in their defence when the question is raised as to whether informed consent has been given.

457 The Tribunal has no reason to doubt the testimony of Patient D that the practitioner told her that there were no risks associated with the surgery, and that he had never had any patients who had complications.

458 The patient presented with a toe fungus that required a topical preparation treatment. She agreed to major surgery on both feet. She agreed to this surgery on the basis that it was a 'walk in the park' and that she would be up and about in two weeks. She also agreed to it in the belief that she would be in a worse position in due time without it. Unless she was apprised of the fact that she could have had complications and require another two corrective surgeries, and that she may end up with a worsened long-term foot status, then she did not give informed consent to the procedure.

459 The Tribunal also takes note of the use of fear tactics with a young woman to suggest that in a short time she would have painful and gnarly feet if she didn't undergo surgery.

460 Once again, we are presented with an internal consistency in the accounts of the four patients, whereby the practitioner has overplayed the benefits and downplayed the potential for complications.

Particular 33 - Was the use of proximal phalangeal base osteotomies on Patient D's 2nd, 3rd and 4th toes an inappropriate procedure (even if the practitioner had correctly diagnosed 2nd, 3rd, and 4th flexible hammer toes, which is not conceded) because of the risk of destabilising the metatarsophalangeal joints further?

461 This particular goes to the question as to whether the actual procedure performed by the practitioner was appropriate. That is, if surgery was to be performed, should the practitioner have simply operated on only the big toe? As it was, he operated on the big toe as well as three other toes. Did this compound the problems? So, the particular questions the appropriateness of this 'multi-toe' approach.

462 The HCCC relies on the evidence of Mr Tillotson as to the appropriate choice of procedure:

From the evidence provided, the x-rays copies do provide adequate evidence to support the diagnosis of bilateral hallus limitus with long first metatarsals and hyperextension at the inter-phalangeal joints. I consider the type and nature of the surgery performed to be appropriate in this case and therefore at the standard consistent with what is reasonably expected of a practitioner of an equivalent level of training and experience.

The Green-Waterman procedure is used to increase the joint space with the intention of increasing range of motion at the first metatarso-phalangeal joint and in doing so also to reduce the length of the metatarsal.

...In my opinion the X-rays and clinical photographs do not reflect the degree of deformity diagnosed by Paul Bours such that the severity would warrant the extensive level of surgical intervention, which was performed in this case. I therefore consider the type and nature of surgery performed by Paul Bours in this case to be a departure from the standard of care which would be suggested by a practitioner having an equivalent level of training and experience and that the standard of choice of procedure/s to be significantly below acceptable standards in a case such as this. (CV4, Tab 68. p.6-7)

463 Mr Tillotson confirmed this position in examination in chief (T569). Although the practitioner submits that Mr Tillotson conceded to his position, a reading of the transcript indicates that this is not a correct interpretation of the evidence given in cross examination.

464 Dr Salerno agreed with the practitioner in the hearing that distal metatarsal osteotomy of the lesser metatarsal is a valid treatment for the condition of lesser metatarsalgia or plexus plate disorder (T778, L41-47). However, it is not clear that this was the condition for which Patient D was being treated.

465 Essentially, Drs Gilheany and Salerno support the practitioner in his decision to offer surgery and the choice of procedure. Clearly, Mr Tillotson does not. Mr Tillotson takes a more conservative approach.

466 The Tribunal is minded that Patient D was a young woman, only twenty-four at the time of the surgery. She did not present with bunion pain, but some deformity could be observed in the foot. She admitted to her aunt and grandmother having bunions. When presented with the fear of a future with grossly deformed feet she underwent major foot surgery, involving her big toe (the site of the bunion) and three additional toes. Major problems ensued following the surgery. There is no evidence before the Tribunal of any failure on her part to observe post-operative instructions or rehabilitative measures. She has endured a great deal of pain and her quality of life has been adversely affected.

467 We acknowledge the different clinical standpoints of the witnesses. Although Ms McNaughton, in cross examination, elicited from Dr Gilheany an admission that he had worked closely with Dr Bours, written academic papers with him, and he'd had a significant role in the practitioner's education, the Tribunal suspects that the evidence advanced comes from a pro-surgery perspective that he would likely support under most circumstances.

468 In the final analysis, the Tribunal cannot depart from the position that, given the great deal of harm that occurred to Patient D as a result of the surgery, bringing into her life symptoms and limitations that did not exist before, the decision to operate was unwise. Further, the choice of such extensive foot surgery involving the second, third, and fourth toes was unmerited, and has caused all manner of problems, including the further destabilisation of the metatarsophalangeal joints.

469 Accordingly, particular 33 is proved to the comfortable satisfaction of the Tribunal.

Particular 34 - Did the practitioner fail to provide adequate post-operative advice?

470 The HCCC submits that the evidence of Patient D was compelling asserting that Patient D's distress, which led her to seek a second opinion from Dr Kuo, is evidence of the lack of adequate post-operative advice.

The submission is made that, if there had been an adequate level of post-operative advice (which issue cannot be divorced from the whole of the circumstances, including the pre-operative information and setting of expectations) it is unlikely that Patient D would have been distressed to the level that she was.

471 Mr Tillotson states that if the practitioner failed to inform Patient D of the extent of her surgery then she may not have been properly prepared for the seriousness and level of postoperative discomfort/pain associated with this level of invasive surgery. Normal post-operative advice would require a structured list of well-enforced post-operative instructions including what to expect post-operatively with regard to pain and swelling. Additionally rest, foot elevation, post-operative footwear, dressing integrity, pain management (including reasonable limits of pain), and contacts for help, should all be part of post-operative instructions.

472 The practitioner relies on his clinical notes (CV3, Tab 57, p.3-4) as a recording of the advice given, as well as his post-operation sheet and operation report.

473 Mr Tillotson says that if Patient D was given the post-operative instructions that were noted in her clinical record, then the practitioner had managed this appropriately. This returns us to the recurring problem of the veracity of the practitioner's notes.

474 Mr Tillotson also states in his report of 14 October, 2012 (CV4, Tab 70, p5) that, in general, the practitioner provided an appropriate level of post-operative care for his patients.

475 We have already determined that the post-operative instruction sheet was adequate. The clinical notes indicate regular follow-up appointments.

476 As with Patient A, the Tribunal notes that the practitioner was available for consultation at the frequency as may have been required, and he involved allied health disciplines where indicated.

477 Similar to Patient A, the issue seems to be the failure to acknowledge the reality of ongoing pain and difficulties, which the practitioner seems have bundled into the range of the 'normal' healing profile. The Tribunal agrees with Mr Tillotson that, had the practitioner given more realistic expectations of the time required for healing and the complications that could occur, then Patient D may have been more prepared for the problems that ensued.

478 Complications did occur. The practitioner addressed them with a second surgery, and proposed a third. The third surgery was ultimately performed by Dr Kuo after Patient D lost confidence in the practitioner.

479 The Tribunal finds that Patient B was not, on balance, given adequate post-operative advice. This is not to suggest that the practitioner was not available to her - indeed he was. The Tribunal finds this way because the practitioner failed to appreciate (or acknowledge) that Patient D had encountered serious post-surgical problems. As such, his advice was tailored to feet in the process of healing, rather than feet in trauma and complications. This is within the context of being poorly apprised of the potential for such to occur. Accordingly, Particular 34 is proved to the Tribunal's comfortable satisfaction.

480 To summarise the findings in relation to Patient D, particulars 29, 30, 32, 33 and 34 are proved to the standard required at law, amounting to five of the six particulars for this patient.

Findings in relation to Complaint One

481 The HCCC has agitated that the practitioner has been guilty of unsatisfactory professional conduct within the meaning of section 139B of the National Law, arguing that he has demonstrated that the knowledge, skill or judgment possessed, or care exercised, by him in the practice of podiatry is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.

482 The Tribunal has found that a little over half of the particulars concerning Patients A, B, C and D have been proved to its comfortable satisfaction. The matters proved include serious matters, such as failure to warn of potential risks and complications of podiatric surgery, inappropriate recommendation of surgery, and failure to obtain informed consent.

483 Dr Bours is an experienced and credentialed practitioner. The matters which have been proved are not matters of complexity in medical practice. They are fundamental matters that are basic to safe, ethical, wise and professional practice.

484 The Tribunal appreciates that there are different schools of thought concerning methodology for foot surgery. There are podiatric surgeons who hold disparate views, and there are differences, too, between some orthopaedic surgeons and podiatric surgeons. We can see that the practitioner's zeal for what he viewed as ground-breaking surgical methods may have caused him to inflate expectations and fail to communicate the extent of the surgery proposed, and the potential for complications and real and long-term difficulties as a result.

485 The professional departures concerning Patients A, B, C and D lead the Tribunal find that the practitioner's conduct comes within that contemplated by s.139B of the National Law, falling below the standard below that reasonably expected of a practitioner of equivalent training and experience. Accordingly, the complaint of unsatisfactory professional conduct is established.

COMPLAINT TWO

has been guilty of unsatisfactory professional conduct within the meaning of section 139B of the National Law in that he has:

(i) demonstrated that the knowledge, skill or judgment possessed, or care exercised, by him in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience,

(ii) engaged in improper conduct relating to the practice of the practitioner's profession.

Particulars to Complaint Two

1. On a number of occasions including but not limited to 8 November 2010, 10 November 2010, 22 November 2010, 1 December 2010, 27 January 2010, 30 May 2011, 21 July 2011, 7 September 2011 and 28 September 2011 the practitioner ordered and took receipt of supplies of Schedule 4 restricted substances ("restricted substances") and Schedule 4D prescribed restricted substances ("prescribed restricted substances") within the meaning of the Poisons and Therapeutic Goods Act 1966 ("the PTGA") from Vital Medical Supplies, in circumstances where the practitioner was not legally entitled to do so and contrary to the provisions of the PTGA.

2. Between 1 July 2010 and 1 December 2011 the practitioner possessed and supplied to patients restricted and prescribed restricted substances in circumstances where the practitioner was not legally entitled to do so and contrary to the provisions of the PTGA.

3. In February or March 2011 the practitioner supplied a restricted substance, namely Panadeine Forte to Patient C in circumstances where the practitioner was not legally entitled to do so and contrary to the provisions of the PTGA.

4. On about 31 May 2011 the practitioner administered a restricted substance, namely a cortisone injection (Depo Medrol) to Patient D in circumstances where the practitioner was not legally entitled to do so and contrary to the provisions of the PTGA

5. On 17 June 2011 the practitioner supplied a restricted substance, namely Digesic to Patient D in circumstances where the practitioner was not legally entitled to do so and contrary to the provisions of the PTGA

486 At the outset it should be noted that the Podiatry Board of Australia (the "Board") is approved to endorse registration of a podiatrist or podiatric surgeon as being qualified to administer, obtain, possess, prescribe, sell, supply or use Schedule 2, 3, 4 or 8 medicines for the treatment of podiatric conditions.

487 To be so endorsed a practitioner must have completed an approved programme of study in podiatry therapeutics, to have completed fifteen web-based case studies, and to have obtained clinical experience supervised by an endorsed prescriber approved by the Board.

488 Section 17C of the Therapeutic Goods Act 1966 (NSW) provides:

A podiatrist whose registration is endorsed under section 94 of the Health Practitioner Regulation National Law as being qualified to possess, use, supply or prescribe a poison or restricted substance is authorised to possess, use, supply or prescribe that poison or restricted substance for the purposes of the practice of podiatry.

489 Section 94 of the National Law:

(1) A National Board may, in accordance with an approval given by the Ministerial Council under section 14, endorse the registration of a registered health practitioner registered by the Board as being qualified to administer, obtain, possess, prescribe, sell, supply or use a scheduled medicine or class of scheduled medicines if the practitioner-

(a) holds either of the following qualifications relevant to the endorsement-

(i) an approved qualification;

(ii) another qualification that, in the Board's opinion, is substantially equivalent to, or based on similar competencies to, an approved qualification; and

(b) complies with any approved registration standard relevant to the endorsement.

490 A search warrant was executed at the practitioner's practice premise on 1 December, 2011 and medications were seized which accorded with the descriptions in Complaint Two (CV5, Tab 94). Such purchases are confirmed by the tax invoices to the practitioner from Vital Medical Supplies between 2 November, 2010 and 13 December, 2011 (CV5, Tab 88), with the exception that there was no record of purchase from that company of Digesic tablets.

Particulars One and Two - Did the practitioner order, receive, possess and prescribe restricted substances to patients without legal authority?

491 It is convenient to deal with particulars one and two together. The practitioner concedes that he ordered and took receipt of medications from the scheduled medicines list as per the dates particularised (Exhibit E, pp35-36).

492 However, the concession by the practitioner is qualified. The practitioner stated that this conduct occurred under the misunderstanding that his national registration as a podiatric surgeon in New South Wales qualified him to possess, use, supply or prescribe the medications.

493 The Tribunal neither believes nor accepts this position. In fact, the practitioner was part way through fulfilling the requirements that would allow him to possess, use, supply or prescribe scheduled medicines. The practitioner paid for, and presumably attended, a two day course in March 2011 which was entitled "Therapeutics Update Course for podiatrists towards accreditation and an Endorsed Podiatrist 2011". The course was part of training towards endorsement described above which allows suitably accredited podiatrists some prescribing and other attendant rights. It is difficult to see how the practitioner claims to have thought himself qualified, and yet was undergoing training to be so qualified.

494 As regards particular two, the practitioner, in admitting the particular, contends that the medications were used when clinically indicated and in the best interests of the patients, that they were not sold to patients, and that they were used in accordance with the guidelines for scheduled medicines. This, of course, does not mitigate the illegal conduct.

495 In oral evidence strenuous attempts were made by the practitioner to argue illogical permeations of the relevant legislation, however, the Tribunal cannot escape the fact that the practitioner was not appropriately qualified for this conduct, that he knew that he was not qualified, and that he deemed himself above the law in this matter.

496 The practitioner's written submissions succinctly outline his position on Complaint 2:

I maintain, if I was in any other state I could have had my prescribing rights ... I had the education, I had the ACPS fellowship. It would have been granted straight away. I could have then crossed back into New South Wales and prescribed from day 1, 1 July 2010. I had previous registration in Victoria and then I would have had automatic registration. I was under the misguidance that, with national law, everyone would be under one umbrella.

497 For reasons already outlined, the Tribunal disputes that accuracy and truthfulness of this submission. It certainly does not negate the fact that the practitioner dispensed medication without proper authority to do so.

498 It was disturbing to the Tribunal that the practitioner continued to argue that his conduct was justified. Particulars one and two are clearly proven on the balance of probabilities.

Particulars three, four and five - Did the practitioner unlawfully supply restricted substances to Patients C and D?

499 The practitioner conceded that "on 28 January 2011, he supplied Patient C Panadeine Forte as prescribed by an anaesthetist and told her to 'take it as directed' by the anaesthetist whilst under the misunderstanding that his national registration as a Podiatric Surgeon in New South Wales qualified him to possess, use, supply or prescribe the above medication for the practice of podiatry." (Exhibit E, pp36-37).

500 As stated, the Tribunal does not believe that the practitioner was under a misapprehension that he was entitled to deal with medications in the manner of which the HCCC complains. That aside, the Tribunal deems the practitioner's subjective opinion about his professional standing in this area to be utterly irrelevant. It is upon the practitioner to be apprised of his rights and obligations, especially in the extremely important area of dealing with medications within the framework of the Poisons and Therapeutic Goods Act 1966 and the National Law.

501 Tribunal accepts the evidence of Patient C that she was given the Panadeine Forte medication in the manner described, as detailed in her written statement (CV3, Tab 43, dated 9 December, 2011). Patient C had difficulty remembering this in oral evidence, but the Tribunal accepts the truth of her written statement which was closer to the events in question. A statement of Karen Ford, Investigation Manager for HCCC, annexes a copy of a box of Panadiene Forte with the following written by hand on the box:

"Paul Bours 28/1/11, Patient C, Take 2 with food MAX 8 pd" (Exhibit F)

502 Particular three is proved to the comfortable satisfaction of the Tribunal.

503 The practitioner denies particulars four and five.

504 In oral evidence Patient D confirmed her statement to the HCCC that the practitioner administered a cortisone injection in her left foot with the explanation that it would help move the joints in the big toe. The practitioner had also agreed in his interview with HCCC on 22 December, 2011 that he had given Patient D a cortisone injection (CV5, Tab 85), although he attempted to resile from this in cross-examination (T830, passim). There was an entry in Patient D's file by the physiotherapist saying that the practitioner had administered a cortisone injection to Patient D.

505 Patient D further confirmed her statement that after the second procedure the practitioner had provided her with a strip of Digesic pain medication, for which she had no prescription. She was not charged for the medication. It is acknowledged that Digesic was not a medication on the invoices in the materials, but we don't discount that the medication may have been sourced elsewhere. The practitioner denies giving Digesic patient D, and refuted the Complainant's suggestion in cross-examination that it could have been sourced from another place.

506 Given the context of the evidence surrounding this complaint there is no reason for the Tribunal to disbelieve Patient D's account of these events. Particulars four and five are proved to the requisite standard.

507 Accordingly, the Tribunal is comfortably satisfied that Complaint Two of unsatisfactory professional conduct is proved. If the practitioner did not know that he was not appropriately endorsed for dealing with pharmaceuticals in the manner described, which the Tribunal does not believe, then he ought to have known. To proceed in supplying scheduled medicines without actual certain knowledge of one's entitlement to do so amounts to practice significantly below the standard reasonably expected of a practitioner of equivalent level of training or experience. The practitioner, in contravention of a clear regulatory framework for the safe use of pharmaceuticals in medical practice, has engaged in improper conduct relating to the practice of his profession, and has demonstrated a level of judgment and care that is significantly below the standard reasonably expected of a practitioner of equivalent training or experience.

Complaint Three

has been guilty of unsatisfactory professional conduct within the meaning of section 139B of the National Law in that he has engaged in improper and unethical conduct relating to the practice of the practitioner's profession.

Particulars to Complaint Three

1. The practitioner called and sent text messages from his mobile telephone to a colleague's mobile telephone and home number on 39 occasions between about 7.29am on 31 May 2011 and about 7.24am on 3 June 2011.

2. The calls and text messages were made by the practitioner in relation to an expert report prepared for the Health Care Complaints Commission for its investigation into a complaint against the practitioner and in circumstances where the practitioner believed the colleague in question was the author of the report.

3. The calls and text messages were harassing in nature due to their persistence and frequency. In addition, the following three text messages reproduced at (a) to (c) below, which the practitioner sent to his colleague on 2 June 2011, and the voicemail message transcribed at (d) below, which the practitioner left on his colleague's answering service on 2 June 2011, were harassing and threatening in nature:

a. "I strongly suggest you pick up your phone. Ignoring me won't ameliorate my anger but will heighten it."

b. "Call me now or I will get on a plane and see you. Your call, the longer you avoid the issue (Colleague's name) style the worse it is going to get."

c. "I'm catching the 11 am tomorrow. If you won't talk now I make you talk tomorrow."

d. "(Colleague's name) you better call me quickly...... you better call me you gutless cunt....... quickly".

Particulars 1-3 - Did the practitioner call and send text numerous text messages to the expert witness at a frequency that made them harassing and threatening in nature?

508 The Tribunal finds all of the particulars proved in Complaint Three.

509 The telephone records of Mr van Essen and the practitioner verify that the calls and text messages were made and sent in the volume and at the times particularised (CV6, Tabs 4,5).

510 The practitioner's failure to acknowledge the unethical aspect of his conduct in this regard was most troubling. The practitioner made admissions in written evidence (Exhibit E, p.38) that he had made the calls, however in oral evidence he claimed that he instructed one of his sons to keep trying to reach Mr van Essen on the phone while he cooked his children dinner, and that his son had kept pressing redial. That is, he argued against the claim that the calls were harassing in their persistence and frequency on the platform that his son had actually dialled, albeit that it was at the practitioner's behest (T838, L18). The Tribunal does not accept that this account is truthful, but, even if it were, the practitioner's disclaimer of wrong-doing on this basis is not accepted. It is also noted that calls were made earlier in the afternoon when the practitioner was not, according to phone records, at home.

511 Further, the practitioner advanced the argument that Mr van Essen was a friend of his, and that the calls were to a friend, not to an expert witness. Although the two men were colleagues within a small nation-wide profession and had some personal association, the Tribunal deems this to be irrelevant in the broader context of the conduct that occurred.

512 Mr van Essen received a telephone call from the practitioner on 31 May, 2011, during which he was asked if he had written the expert report for the HCCC to support the present Complaint. In his statement to the HCCC Mr van Essen reports that colleagues had already reported to him that the practitioner had "canvassed extensively other college members to try and find out who had written the report." (CV6, Tab 8). During that conversation the practitioner continued to press for the identity of the report writer, saying that whoever had written the report was "fucked". Mr van Essen denied writing the report. It was on this backdrop that the later persistent calls and messages were made by the practitioner on 2 June, 2011.

513 Around 10pm on 2 June, Mr van Essen 2011 rang Mr Mario Horta, the President of the Australasian College of Podiatric Surgeons, to advise what had transpired. He sent copies of the text and voicemail messages to the President.

514 The HCCC relies on the expert report of Ms Harriet Farquhar (CV6, Tab 18) with respect to this conduct , which she considered in the light of the Code of Practice of the Australasian College of Podiatric Surgeons (May 2010) and Competency Standards of the College (January 2010). Ms Farquhar opines that it is reasonable to expect that the practitioner would have an understanding of the processes of the HCCC and the inappropriate nature of both determining who had provided an expert report and his behaviour concerning the text messages and telephone communications. She further asserts breach of standard 1.2 of the Code of Conduct and Standard 2, competencies 2.1 and 2.2 of the Competency Standards.

515 Ms Farquhar went on to state that the behaviour of the practitioner was threatening, and contrary to the expectation of courtesy and absence of threats in interactions between colleagues. Further, it is reasonable to expect that an expert witness will not be challenged by the accused outside the legal arena.

516 Ms Farquhar concludes, "in my opinion the professional conduct of Mr Bours with respect to his communication towards the Commission's expert Mr van Essen between 31 May 2011 and 3 June 2011was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. Furthermore, this departure invites my strong criticism of the behaviour." (CV6, Tab 21, p.4)

517 The Tribunal has no hesitation in finding that this conduct amounts to unsatisfactory professional conduct under s.139B of the National Law in that he has engaged in improper and unethical conduct relating to the practice of the practitioner's profession.

518 Furthermore, we find the practitioner's failure to acknowledge the seriousness of this matter, together with his utter lack of contrition, to be a matter of great concern. The Tribunal expresses is profound disapproval of the practitioner's conduct in this matter. Complaint Three of unsatisfactory professional conduct is proved to the Tribunal's comfortable satisfaction.

Complaint 4

is guilty of professional misconduct under section 139E of the National Law in that the practitioner has:

(i) engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or

(ii) engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.

Particulars to Complaint Four

Complaints One, Two and Three including the particulars thereof, are repeated and relied on both individually and cumulatively.

Meaning of unsatisfactory professional conduct and professional misconduct

519 The statutory definitions of unsatisfactory professional conduct and professional misconduct under the National Law are extracted earlier in these reasons for decision.

520 A finding of unsatisfactory professional conduct will be made when the Tribunal is comfortably satisfied that the conduct made out demonstrates one of the deficiencies or inadequacies contained in s.139B of the National Law. Complaint One alleges that the conduct particularised constitutes unsatisfactory professional conduct under s.139B(1)(a) of the Act, namely, s.139(a) Conduct that demonstrates the knowledge skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. Additionally, Complaint Two alleges that the practitioner has engaged in improper conduct, and Complaint Three alleges the practitioner has engaged in improper and unethical conduct, relating to the practice of the practitioner's profession.

521 The Tribunal has made findings of unsatisfactory professional conduct in relation to Complaints One, Two, and Three.

522 A finding of professional misconduct will be made when the Tribunal is comfortably satisfied that the conduct made out satisfies s.139E of the National Law.

523 Accordingly, Complaint Four requires the Tribunal to consider whether the unsatisfactory conduct, or the cumulative instances of unsatisfactory professional conduct, amounts to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.

524 Interpretation of the legislation is assisted by the body of common law in the area of professional disciplinary matters. The classic common law definition of professional misconduct derives from Allinson v General Counsel of Medical Education and Registration (1894) 1 QB 755, namely:

"[Conduct] which could be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency."

525 The essence of this definition was restated by Priestley JA in Qidwai v Brown (1984) 1 NSWLR 100 at 105:

"...whether the practitioner was in such breach of the written or unwritten rules of the profession as would reasonably incur the strong reprobation of professional brethren of good repute and competence..."

526 It can be a vexed question to determine what type of conduct creates a bridge from the lesser finding of unsatisfactory professional conduct to the more serious one of professional misconduct. Kirby P, in a case concerning a medical practitioner, considered the question in Pillai v Messiter (No 2) (1989) 16 NSWLR 97 at 200-201:

"Departures from elementary and generally accepted standards of which a medical practitioner could scarcely be heard to say that he or she was ignorant could amount to such professional misconduct ... But the statutory test is not met by mere professional incompetency or by deficiencies in the practice of the profession. Something more is required. It includes a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner..."

527 Contemporary cases involving unsatisfactory professional conduct and professional misconduct primarily consider the wording of the relevant statute rather than the considerations of moral condemnation found in earlier decisions, expressing their views "in terms of strong criticism". (Lucire v Health Care Complaints Commission [2011] NSWSC 99; Donnelly v Health Care Complaints Commission (NSW) [2011] NSWSC 70).

528 The practitioner has within his materials some references / testimonials from patients who have been very happy with his surgery, and pleased to have had the opportunity to avail themselves of alternate techniques (RV2, Tab 14). There are four testimonial letters in particular that are glowing, and speak of the practitioner's attentiveness, thorough examination and explanations, good aftercare, and good results. Three of them are dated in 2011, and one in early 2012. One is from a GP who regularly refers patients to Dr Bours, and has undergone surgery himself at the practitioner's hand with good result. He speaks highly of the practitioner's skill and professionalism.

529 The Tribunal does not doubt that the practitioner is an accomplished surgeon, and provides a service to the medical community. In his submissions he asserts that Patients A, B, C, and D have had 'selective listening', and that he spends a lot of time with his patients where there is opportunity for questioning and instruction on risks and complications, after which they can make a free-willed decision.

530 Further, the practitioner's submissions restate his position that he has been the victim of poor treatment at the hand of orthopaedic surgeons, and that throughout this process he has not been 'treated equally'. That is, he agitates that the views put by the orthopaedic surgeons - a medical community, he agitates, is prejudiced against podiatric surgeons - have been preferred over his.

531 However, the matters proved in Complaints One, Two, and Three are serious matters. Yet, some of the departures proved concerning Patients A, B, C, and D are not sophisticated matters. They go to the heart of safe, ethical and wise professional practice. Failure to give a realistic view of risks and complications of surgery, particularly when they can have such a devastating effects on health and lifestyle, demonstrates a lack that should not be found in an experienced and well-trained health professional such as Dr Bours. Creating the right environment for obtaining informed consent for surgery is a fundamental in medical practice, not an oddity. While there were more complex matters considered in the particulars, such as choice or otherwise of the correct type of surgical procedure, some of the failings were in the realm of basic medical practice.

532 The Tribunal expresses strong criticism of the practitioner's breaches in relation to receiving and prescribing medication unlawfully. Further, for such flagrant breaches of the law we would have expected a real acknowledgement of the wrong-doing, and evidence of contrition. However, the practitioner's response was to justify his conduct with spurious interpretations of the legislation to back up his position. His outrage at having been subjected to a search warrant far exceeded any sense of wrongdoing on his part.

533 Further, the Tribunal was appalled by, not only the harassment and intimidation of an expert witness, but the practitioner's attempts to justify his conduct.

534 This leaves us to then consider whether the conduct of the practitioner in the practice of his profession would invite "strong criticism". The Tribunal is of the view that it does, and that it amounts to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. Complaint Four, being that of professional misconduct, is established on the evidence.

Two stage hearing

535 Once determinations have been made by the Tribunal as to the categorisation of the conduct under the Act as either unsatisfactory professional conduct or professional misconduct, it is then incumbent upon the Tribunal to consider the appropriate consequential order(s).

536 It was foreshadowed during the hearing that, due to the complexity of the issues and evidence involved in this case, it would be prudent to have a "two stage" hearing to allow the parties to make submissions as to appropriate consequential orders and as to costs.

537 The Tribunal will hear submissions from the parties at the second stage hearing, which will be on a date to be fixed by the Registrar.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

Registrar

APPENDIX A

COMPLAINT

IN THE PODIATRY TRIBUNAL

CONSTITUTED UNDER SECTION

165 OF THE HEALTH PRACTITIONER

REGULATION NATIONAL LAW (NSW)

In the matter of Paul Bours,

a person registered under the

Health Practitioner Regulation

National Law (NSW)

The Health Care Complaints Commission of Level 13, 323 Castlereagh Street, Sydney NSW, having consulted with the Podiatry Council of New South Wales in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law (NSW) ("the National Law")

COMPLAINT ONE

has been guilty of unsatisfactory professional conduct within the meaning of section 139B of the National Law in that he has demonstrated that the knowledge, skill or judgment possessed, or care exercised, by him in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.

PARTICULARS OF COMPLAINT ONE

Patient A

On 1 July 2009 the practitioner performed surgery on Patient A's left and right feet ("the procedures"). The procedures comprised a decompressive osteotomy of the 1st metatarso-phalangeal joint (Green-Waterman procedure) and an arthrodesis of the interphalangeal joint on each of Patient A's great toes. This had the effect of shortening the first metatarsal and fusing the interphalangeal joint on each of Patient A's great toes. The practitioner's care of Patient A fell significantly below the standard expected of a practitioner in that he:

1. Failed to provide sufficient information to ensure Patient A understood the procedures prior to them being performed.

2. Failed to inform Patient A prior to performing the procedures that his great toes would be shorter as a result of the procedures,

3. Failed to advise Patient A that the minimal incision surgery (MIS) techniques he proposed to carry out on Patient A by performing the procedures were considered controversial by other podiatric surgeons and orthopaedic surgeons,

4. Failed to provide Patient A with adequate information regarding the risks and potential complications of the surgery, the likely length of recovery time, the persistence and severity of post surgery pain, the disability and discomfort that would result from the surgery and, the length of time that Patient A would not be able to walk without discomfort, wear normal footwear or return to work and normal activity.

5. Utilised a consent form which, when completed by the practitioner, lacked information about the specific risks of the procedures to be performed and failed to clearly identify the procedures to be undertaken.

6. Having regard to 1, 2, 3, 4 & 5 above failed to obtain informed consent from Patient A to the procedures.

7. Failed to provide Patient A with an adequate level of post-operative advice relevant to the procedures.

8. Failed to adequately respond to Patient A's complaints of post-operative pain regarding the fixation pins used to fuse the joint of his right great toe.

Patient B

On 4 September 2009 the practitioner performed a pan metatarsal resection surgery on Patient B's left foot ("the first procedure"). On 31 March 2010 the practitioner performed a pan metatarsal head resection surgery on Patient B's right foot ("the second procedure"). The practitioner's care of Patient B in relation to the first procedure and the second procedure fell significantly below the standard expected of a practitioner in that the practitioner:

9.(a) Failed to consult with Patient B's general practitioner or specialist rheumatologist in relation to the decision to proceed with the first procedure and the arrangements for Patient B's post-operative care, prior to performing the first procedure on 4 September 2009 or in the alternative,

(b) Failed to make a record of any consultation with Patient B's general practitioner or specialist rheumatologist in relation to the decision to proceed with the first procedure and the arrangements for Patient B's post-operative care, prior to performing the first procedure on 4 September 2009,

(c) Failed to obtain a full medical and surgical history from Patient B prior to performing the first procedure on 4 September 2009 or in the alternative

(d) Failed to record a full medical and surgical history for Patient B,

(e) Failed to obtain copies of Patient B's recent pathology blood test results and recent reports from her treating medical specialists, prior to performing the first procedure on 4 September 2009.

10.(a) Failed to consult with Patient B's general practitioner or specialist rheumatologist in relation to the decision to proceed with the second procedure and the arrangements for Patient B's post-operative care, prior to performing the second procedure on 31 March 2010 or in the alternative,

(b) Failed to make a record of any consultation with Patient B's general practitioner or specialist rheumatologist in relation to the decision to proceed with the second procedure and the arrangements for Patient B's care, prior to performing the second procedure on 31 March 2010,

(c) Failed to obtain a full medical and surgical history from Patient B prior to performing the second procedure on 31 March 2010 or in the alternative

(d) Failed to record a full medical and surgical history for Patient B

(e) Failed to obtain copies of Patient B's recent pathology blood test results and recent reports from her treating medical specialists, prior to performing the second procedure on 31 March 2010.

11. Failed to provide Patient B with adequate information regarding the risks and potential complications of the first and second procedures having regard to Patient B's medical conditions and smoking status.

12. Failed to advise Patient B MIS techniques he proposed to use in carrying out the first and second procedures were considered controversial by other podiatric surgeons and orthopaedic surgeons.

13. Completed and utilised a consent form for the first procedure which lacked information about the specific risks of the procedure to be performed and failed to clearly identify the procedure to be undertaken,

14. Completed and utilised a consent form for the second procedure which lacked information about the specific risks of the procedure to be performed and failed to clearly identify the procedure to be undertaken.

15. Having regard to particulars 11, 12, 13 & 14 failed to obtain informed consent from Patient B for the surgery comprising the first and second procedures.

16. Inappropriately performed the first procedure as a day procedure despite Patient B's medical problems and the likelihood she may require post operative surgical, medical and/or nursing care.

17. Inappropriately decided to perform the first and second procedures himself rather than referring Patient B to an appropriately qualified medical practitioner despite Patient B's medical conditions and smoking status and the likelihood she may require post-operative medical and/or nursing care.

18. Inappropriately performed the second procedure as a day procedure despite Patient B's medical problems and the likelihood she may require post operative surgical, medical and/or nursing care.

19. Inappropriately scheduled the second procedure on the day before the practitioner was travelling interstate for the Easter break and would be unable to attend on the patient until the fifth day after carrying out the second procedure.

20. Failed to make appropriate arrangements for Patient B to have access to adequate surgical, medical and nursing care immediately after the second procedure when the practitioner would be interstate and other services would not be easily accessible due to the Easter break.

21. Failed to provide Patient B with an adequate level of post-operative advice relevant to her specific surgeries after carrying out the first and second procedures including advice not to smoke cigarettes after surgery.

Patient C

On 19 January 2011 the practitioner performed surgery on Patient C's left foot ("the procedures"). The procedures comprised an arthrodesis of the interphalangeal joint of Patient C's left great toe and proximal phalangeal osteotomies of Patient C's 2nd, 3rd, 4th and 5th left toes. The practitioner's care of Patient C fell significantly below the standard expected of a practitioner in that he:

22. Inappropriately advised Patient C to have the procedures when: her feet were not causing her significant problems; the reason she had consulted the practitioner was for treatment of a fungal infection on her great toe; Patient C's 2nd and 3rd left toes did not exhibit significant deformities; and, non-surgical treatment options were not sufficiently explored, offered or trialled by the practitioner, prior to planning the surgical treatment.

23. Failed to provide Patient C with adequate information regarding risks, complications of the procedures and the likely length of recovery time, the persistence and severity of post surgery pain, disability and discomfort, the length of time when Patient C would not be able to walk without discomfort, wear normal footwear or return to work.

24. Completed and utilised a consent form which lacked information about the specific risks of the procedures to be performed and failed to clearly identify the procedures to be undertaken.

25. Failed to provide sufficient information to ensure that Patient C understood the procedures which were to be performed.

26. Having regard to particulars 22, 23, 24 & 25 above failed to obtain informed consent from Patient C to the carrying out of the procedures.

27. Inappropriately scheduled the surgery in January 2011 when Patient C's daughter's wedding was to be held in March and Patient C had arranged to travel overseas in May 2011.

28. Failed to provide Patient C with an adequate level of post-operative advice relevant to her specific surgeries after carrying out the procedures,

Patient D

On 18 April 2011 the practitioner performed surgery on Patient D's left and right feet ("the first procedures"). The first procedures comprised: (1) minimal incision surgery (MIS) bunionectomies (Reverdin Isham osteotemies); (2) bilateral great toe interphalangeal joint fusions with the insertion of 4mm x 40mm cannulated screws; (3) bilateral 2nd and 3rd toe distal metatarsal osteotomies with MIS; and (4) bilateral 2nd, 3rd and 4th toe proximal phalangeal base osteotomies with MIS. On 17 June 2011 the practitioner performed a further procedure on Patient D's feet ("the second procedure"). The second procedure comprised an osteotomy on Patient D's left great toe with MIS. The practitioner's care of Patient D fell significantly below the standard expected of a practitioner in that he:

29. Inappropriately advised Patient D to have the procedures when: her feet were not causing her significant problems; the reason she had consulted the practitioner was for treatment of a fungal infection on her great toe; Patient D's toes did not exhibit a degree of deformities such that the severity would warrant the extensive level of surgical intervention involved in carrying out the procedures; and, non surgical treatment options were not sufficiently explored, offered or trialled by the practitioner, prior to planning the procedures.

30. Failed to provide Patient D with adequate information regarding risks, complications of the procedures and the likely length of recovery time, the persistence and severity of post surgery pain, disability and discomfort, the length of time when the patient would not be able to walk without discomfort, wear normal footwear or return to work.

31. Completed and utilised a consent form which lacked information about the specific risks of the procedures to be performed and failed to clearly identify the procedures to be undertaken.

32. Having regard to particulars 29, 30 and 31 above failed to obtain informed consent from Patient D to the carrying out of the procedures.

33. Inappropriately performed proximal phalangeal base osteotomies on Patient D's 2nd, 3rd and 4th toes. Even if the practitioner's findings that Patient D had left 2nd, 3rd and 4th flexible hammer toes were correct, which is not conceded, the practitioner's choice of procedure was inappropriate because of the risk of destabilising the metatarsophalangeal joints further.

34. Failed to provide Patient D with an adequate level of post-operative advice relevant to her specific surgeries after carrying out the procedures..

COMPLAINT TWO

has been guilty of unsatisfactory professional conduct within the meaning of section 139B of the National Law in that he has:

(i) demonstrated that the knowledge, skill or judgment possessed, or care exercised, by him in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience,

(ii) engaged in improper conduct relating to the practice of the practitioner's profession.

PARTICULARS OF COMPLAINT TWO

1. On a number of occasions including but not limited to 8 November 2010, 10 November 2010, 22 November 2010, 1 December 2010, 27 January 2010, 30 May 2011, 21 July 2011, 7 September 2011 and 28 September 2011 the practitioner ordered and took receipt of supplies of Schedule 4 restricted substances ("restricted substances") and Schedule 4D prescribed restricted substances ("prescribed restricted substances") within the meaning of the Poisons and Therapeutic Goods Act 1966 ("the PTGA") from Vital Medical Supplies, in circumstances where the practitioner was not legally entitled to do so and contrary to the provisions of the PTGA.

2. Between 1 July 2010 and 1 December 2011 the practitioner possessed and supplied to patients restricted and prescribed restricted substances in circumstances where the practitioner was not legally entitled to do so and contrary to the provisions of the PTGA.

3. In February or March 2011 the practitioner supplied a restricted substance, namely Panadeine Forte to Patient C in circumstances where the practitioner was not legally entitled to do so and contrary to the provisions of the PTGA.

4. On about 31 May 2011 the practitioner administered a restricted substance, namely a cortisone injection (Depo Medrol) to Patient D in circumstances where the practitioner was not legally entitled to do so and contrary to the provisions of the PTGA

5. On 17 June 2011 the practitioner supplied a restricted substance, namely Digesic to Patient D in circumstances where the practitioner was not legally entitled to do so and contrary to the provisions of the PTGA

COMPLAINT THREE

has been guilty of unsatisfactory professional conduct within the meaning of section 139B of the National Law in that he has engaged in improper and unethical conduct relating to the practice of the practitioner's profession.

PARTICULARS OF COMPLAINT THREE

1. The practitioner called and sent text messages from his mobile telephone to a colleague's mobile telephone and home number on 39 occasions between about 7.29am on 31 May 2011 and about 7.24am on 3 June 2011.

2. The calls and text messages were made by the practitioner in relation to an expert report prepared for the Health Care Complaints Commission for its investigation into a complaint against the practitioner and in circumstances where the practitioner believed the colleague in question was the author of the report.

3. The calls and text messages were harassing in nature due to their persistence and frequency. In addition, the following three text messages reproduced at (a) to (c) below, which the practitioner sent to his colleague on 2 June 2011, and the voicemail message transcribed at (d) below, which the practitioner left on his colleague's answering service on 2 June 2011, were harassing and threatening in nature:

a. "I strongly suggest you pick up your phone. Ignoring me won't ameliorate my anger but will heighten it."

b. "Call me now or I will get on a plane and see you. Your call, the longer you avoid the issue (Colleague's name) style the worse it is going to get."

c. "I'm catching the 11 am tomorrow. If you won't talk now I make you talk tomorrow."

d. "(Colleague's name) you better call me quickly...... you better call me you gutless cunt....... quickly".

COMPLAINT FOUR

is guilty of professional misconduct under section 139E of the National Law in that the practitioner has:

(i) engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or

(ii) engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.

PARTICULARS TO COMPLAINT FOUR

Complaints One, Two and Three including the particulars thereof, are repeated and relied on both individually and cumulatively.

DATED this 29th day of January 2013

Karen Mobbs

Director of Proceedings

Health Care Complaints Commission

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar

Amendments

23 October 2014 - typographical error
Amended paragraphs: Paragraph 501

23 October 2014 - typographical
Amended paragraphs: paragraph 381

Decision last updated: 23 October 2014