Health Care Complaints Commission v Dr Maendel [2013] NSWMT 3

Health Care Complaints Commission v Dr Maendel [2013] NSWMT 3

Complaints One and Two were established because the respondent failed to pursue appropriate investigative and proactive management, failed to ensure appropriate monitoring and reassessment, failed to obtain a CT scan or independent medical opinion, gave advice to the patient's proxy that was flawed by the absence of proper investigation, and failed to keep proper records. Complaint Three was not established because, applying the Briginshaw approach and evaluating the overall circumstances, the Tribunal was not satisfied that the respondent's conduct was sufficiently serious to amount to professional misconduct: he acted honestly and in what he perceived to be his mother's best interests...

Jurisdiction
Australia
Judgment Date
08 March 2013
Procedural Posture
Civil Disciplinary Complaint Concerning a Medical Practitioner / Determination of Whether Complaints Were Established; Protective Orders Deferred
Outcome
Complaints One and Two established; Complaint Three not established; matter stood over for consideration of protective orders; costs reserved.
Legal Topics
['unsatisfactory Professional Conduct' 'professional Misconduct' 'treatment of Family Member by Medical Practitioner' 'palliative Care' 'failure to Refer for CT Scan, Hospitalisation and Specialist Opinion' 'medical Record Keeping' 'briginshaw Standard']
['health Practitioner Regulation' 'medical Professional Discipline' 'civil Procedure'] ['unsatisfactory Professional Conduct' 'professional Misconduct' 'treatment of Family Member by Medical Practitioner' 'palliative Care' 'failure to Refer for CT Scan, Hospitalisation and Specialist Opinion' 'medical Record Keeping' 'briginshaw Standard']

Case Brief

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Procedural Posture

Civil Disciplinary Complaint Concerning a Medical Practitioner / Determination of Whether Complaints Were Established; Protective Orders Deferred

Legal Issues

  1. 1 ["Whether the respondent's treatment and management of his mother after her collapse amounted to unsatisfactory professional conduct under Section 139B of the Health Practitioner Regulation National Law (NSW)." 'Whether the respondent failed to keep proper records and whether that conduct amounted to unsatisfactory professional conduct.' 'Whether the established particulars of Complaints One and Two amounted to professional misconduct under Section 139E of the Health Practitioner Regulation National Law (NSW).' "Whether the respondent's belief as to the patient's wishes and the circumstances in which he acted prevented a finding of professional misconduct."]

Ratio Decidendi

Complaints One and Two were established because the respondent failed to pursue appropriate investigative and proactive management, failed to ensure appropriate monitoring and reassessment, failed to obtain a CT scan or independent medical opinion, gave advice to the patient's proxy that was flawed by the absence of proper investigation, and failed to keep proper records. Complaint Three was not established because, applying the Briginshaw approach and evaluating the overall circumstances, the Tribunal was not satisfied that the respondent's conduct was sufficiently serious to amount to professional misconduct: he acted honestly and in what he perceived to be his mother's best interests...

Court Disposition

Complaints One and Two established; Complaint Three not established; matter stood over for consideration of protective orders; costs reserved.

Orders

  • ['Complaints One and Two of the Amended Notice of Complaint are found to be established.' 'Complaint Three is found not to have been established.' 'The matter is stood over for the consideration of protective orders to 22 May 2013.' 'The costs of the hearing to date are reserved.']