SURESH KUMAR VATSYAYANN V PROFESSIONAL CONDUCT COMMITTEE HC WN CIV 2009-485-259

SURESH KUMAR VATSYAYANN V PROFESSIONAL CONDUCT COMMITTEE HC WN CIV 2009-485- 259 14 August 2009IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV 2009-485-259IN THE MATTER OF an appeal pursuant to section106(2)(a) of the Health Practitioners Competence Assurance Act 2003 BETWEEN SURESH KUMAR VATSYAYANN Appellant AND PROFESSIONAL CONDUCT COMMITTEE Respondent Hearing: 6 August 2009 Counsel: A H Waalkens QC and A L Credin for Appellant J C Hughson for Respondent Judgment: 14 August 2009JUDGMENT OF SIMON FRANCE J Introduction[1] Dr Vatsyayann appeals a finding that he was guilty of professional misconduct. He also challenges the quantum of fine, $5,000, and the size of the costs award.Charges[2] There was a single charge under ss 91 and 100 of the Health Practitioners Competence Assurance Act 2003. It alleged that in the course of his management of specific patients, Dr Vatsyayann had engaged in conduct that amounted to professional misconduct. Three Particulars were provided that were said to establish the charge, whether taken individually or cumulatively. [3] I will provide the specific wording of each Particular when considering the appeal points. At this point they can be summarised as being that on three occasions Dr Vatsyayann produced false or misleading clinical notes. The incorrect aspect on two of the occasions was that the notes indicated that specific assessments had been carried out when they had not. For example, that the notes suggested an abdominal examination had been carried out when the patient said that had never happened. The third Particular is the most serious, namely that the notes indicated that Dr Vatsyayann had seen a patient when he had not. It was alleged that someone else had done the consultation. Of itself that might not be the most serious thing ever alleged, but its gravity becomes plain when it is recognised that Dr Vatsyayann was the only registered doctor working out of the practice at that time. [4] The background to the charges was that two patients had complained about aspects of their treatment. In the course of addressing those complaints, the patients' medical records were obtained and provided to them. Upon reading the notes the patients made the claims that underlie the three specific allegations just described.Approach on appeal[5] The parties are agreed that the two step test identified by the Court of Appeal in F v Medical Practitioners Disciplinary Tribunal [2005] 3 NZLR 774 is applicable to charges of this nature. The two steps are: a) Did the proven conduct of the medical practitioner fall short of the conduct expected of the reasonably competent medical practitioner operating in that vocational area?b) If so, were the circumstances of that breach sufficiently significant to justify the imposition of a sanction? [6] The parties are at odds over what conduct meets the second step, which is sometimes called the threshold question. Ms Hughson says the test is as it is and does not require elaboration. She relies on a judgment of Courtney J in Director of Proceedings v Martin, HC Auckland, CIV 2006-404-5706, 2 July 2008. [7] Mr Waalkens QC submits that in order to be sufficiently significant to warrant sanction, the conduct should have the characteristics discussed by Kirby J inPillai v Messiter (1989) 16 NSWLR 197. The way the test from that case is described seems to vary, but the common theme is that it is a high standard requiring a gross departure from recognised standards. Other expressions have been "malpractice of a serious degree such as to be substantially below the standards" (Collie v Nursing Council [2000] NZAR 74) and "a high threshold of breach of duty" (J v Director of Proceedings, HC Auckland, CIV 2006-404-2188, 17 October 2006). Mr Waalkens indicated that his research had identified more than twenty cases in New Zealand where Pillai had been cited with approval. [8] My view of the facts of this case is such that this debate is unlikely to affect the outcome, so I do not consider the cases in further detail. Generally in terms of the approach to be taken, I observe that it is plain that something more than a breach of acceptable standards is required, because otherwise there would be no need for step 2. It is also plain that the breach must be of sufficient significance to merit recording a finding of professional misconduct against the practitioner. It is important to bear in mind that it is a finding that carries stigma, and represents a message about the person's conduct of their professional responsibilities that will be keenly felt by the person, and noted by his or her peers. [9] The parties are agreed that in relation to both steps this Court is to form its own assessment, having regard to the expertise of the panel but not approaching that aspect with undue deference.Grounds of appeal[10] Originally there were five Particulars. The first two were dropped, but there was no renumbering. It is convenient to retain the numbering used in the Ruling under appeal so the references will be to Particulars 3, 4 and 5. [11] Each Particular was found to have been established. The Tribunal ruled that Particular 3 (the non-consultation) standing alone merited sanction. It held that Particulars 4 and 5, although not to be trivialised, were insufficient taken together to merit sanction, but were properly added to Particular 3 as reflecting concerns about Dr Vatsyayann's clinical records. [12] The appeal challenges the correctness of finding each Particular proved. It is also submitted on appeal that the Tribunal erred in finding the threshold to have been met. [13] Each Particular will be addressed in turn.Issue one – Particular 3[14] The Particular alleges:That Dr Vatsyayann produced false and/or misleading clinical notes which assert that he was consulted by [Patient B] on 2 April 2007 when [B] did not consult with Dr Vatsyayann on that date.(a) Facts[15] [B] had not long turned sixteen at the time of these events. She was the mother of a two year old. She had been to her regular doctor being concerned that she was feeling depressed. Her regular doctor was concerned about prescribing anti-depressants to so young a person and suggested that she see a psychologist or psychiatrist.[16] A Family Start worker who was assisting [B] recommended she see Dr Vatsyayann. Dr Vatsyayann ran what is known as the Family Clinic. It seemingly has a good reputation, and was popular because Dr Vatsyayann did not charge his patients. He relied on the capitation payments he received in relation to them. [17] [B] went to the Clinic. Dr Vatsyayann was a sole practitioner. On his staff he had a Dr Gilgen who was at the time a suspended medical practitioner. He was employed as a "GP assistant" which in broad terms is someone who does what the "Practice Nurse" has traditionally done. By the time of the hearing Dr Gilgen had, as I understand it, been removed from the register and was unavailable because he was now resident overseas. [18] The essence of the complaint is that [B] saw Dr Gilgen, yet the clinical records suggest she saw Dr Vatsyayann. The records disclose what appears to be a full consultation with [B]. They record the problems [B] was reporting, and her personal circumstances. There is a record of her family history and that of her son. Under the heading OE (On Examination) weight, height and blood pressure are recorded. [19] There is next a heading MSE under which are recorded observations concerning mood, eye contact, chest NAD and heart NAD. The next major heading is IMP which I understand refers to Clinical Impressions. The entries there, are: a) situational reaction and depressed mood; b) ? depressive episode. [20] Finally there is a heading PLAN. Part of the plan is to prescribe anti-depressants. It is common ground that Dr Vatsyayann signed the prescription, being in fact the only person authorised to do so. [21] Dr Vatsyayann's position throughout was that it was he who had seen [B]. He accepted he had no independent recollection of this or the other two consultationsthat are the subject of allegations. His evidence, although written in terms of one who had memory of the events, was in effect a reconstruction of what he thought must have happened, given what the notes said. [22] During the investigation process, data entry records were obtained. They showed that the person who was logged on to enter the notes during [B]'s consultation was Dr Gilgen. Dr Vatsyayann responded to this by saying that Dr Gilgen's task was (legitimately) to do initial tasks such as getting the history, taking blood pressure and matters like that. What must have happened is that when Dr Vatsyayann came in to do the actual consultation, he (Dr Vatsyayann) must have forgotten to log out Dr Gilgen and log himself in. Hence the log record remained in Dr Gilgen's name. [23] The Tribunal found that Dr Vatsyayann had not seen [B]. There was ample evidence to support this. In addition to matters such as the log record, [B] had been accompanied to the consultation by the Family Start worker. Both witnesses said that [B] had seen only Dr Gilgen. Further, [B] later saw Dr Vatsyayann in May 2007 so was advantaged in her evidence by knowing what both he and Dr Gilgen looked like. [24] There is no challenge to this finding that Dr Vatsyayann did not see [B] on this occasion, and that therefore the notes were misleading.(b) Primary appeal point[25] The challenge Mr Waalkens advances is quite narrow in scope. Recalling that the charge is that:Dr Vatsyayann produced false and/or misleading clinical notes,Mr Waalkens submits that once the Tribunal decided that Dr Vatsyayann had not in fact seen [B] at all, it must be that it was Dr Gilgen and not Dr Vatsyayann who "produced" the notes. This proposition depends upon reading the word "produce" in the charge as meaning "generated".[26] Right throughout both the investigation and the hearing it had, of course, been Dr Vatsyayann's position that it was he who had seen [B] and accordingly there was no specific challenge about who produced the notes or what that meant. It was only in closing that Mr Waalkens submitted this alternative proposition to the Tribunal. It was in effect to say the charge was inherently flawed. Since it was always the prosecution allegation that Dr Gilgen had seen the patient, had done the consultation and had entered the data, the proof of the charge was always going to undermine the charge if Mr Waalkens' submission is correct. [27] The Tribunal's response to the submission was this:102. The Tribunal does not accept this submission. When read as a whole the particular also focuses the attention of the Tribunal on the fact that Dr Vatsyayann [and the notes] said that he saw [B]. Dr Vatsyayann has never accepted that he did not produce the notes. The notes have always been presented on the basis that they were Dr Vatsyayann's notes regardless of the fact that Dr Vatsyayann's name always appears on notes printed from the Family Clinic. He continued to assert he saw [B] on that day because he provided a prescription for anti depressants for her which he signed and which [B] filed. He asserts that both he and Dr Gilgen saw [B] and wrote the notes.[28] For broadly similar reasons I agree. In my view, in the context of this case, it is incorrect to read the word "produce" as meaning "generated". I see nothing to suggest that that was the understanding of the parties or that the mischief aimed at was the actual entering of the data. Who entered the data was important only as regards what it meant for the question of who had done the consultation. [29] Underlying the appellant's approach to this and the other challenges yet to be discussed is an approach to the wording of Particulars which I do not accept. The Act requires (s 92) that the practitioner be given a written notice that:contains sufficient particulars to inform the practitioner clearly of the substance of the ground believed to exist.[30] This information obligation does not support breaking down the Particulars, and indeed words within the Particulars, to an unrealistic degree, or to one shorn of context. This is, I consider, also what the Tribunal was saying in its response – namely, that the essence of Particular 3 is that the record wrongly recordsDr Vatsyayann as seeing the patient. That was always known to be the gravaman of the allegation. [31] The context of a charge of inaccurate clinical records is that it is a sole practice run by Dr Vatsyayann. He is the only registered doctor, and is plainly responsible for the records. The patient in question had come to see him as the doctor, and the clinical records of the practice suggest she did just that. The allegation was that the clinical notes are not true. If that was established, the allegation was the circumstances of inaccuracy made Dr Vatsyayann guilty of malpractice. [32] Within this context I read "produce" in a broader sense of "being responsible for", and accept the Tribunal's conclusion that there was no uncertainty about the core allegation. [33] That deals with the primary point raised by the appellant. However, during the course of the hearing other matters arose on which I wish to comment. They impact both on the threshold question, and also on the penalty appeal.(c) Other concerns[34] A matter that concerned me is the lack of clear identification of what was alleged to be Dr Vatsyayann's culpability in relation to the situation. If the prosecution succeeded, as it did, in showing that the record wrongly recorded him as having done the consultation with [B], the inevitable conclusion was that Dr Gilgen had seen her and the record was false. What was being said about Dr Vatsyayann's role in that? [35] Once it was found that on the day Dr Vatsyayann did not see this patient, there are realistically only two options: either, a) he was a knowing participant in the falsity of the record. This knowledge could arise at one of two points. First he might have known on the day that Dr Gilgen had seen [B] and allowed that tooccur. He would in such circumstances appreciate from the outset that the record was false. Alternatively, as the inquiry into what happened developed, he may have subsequently come to realise that the record was incorrect and that, unbeknown to him at the time, Dr Gilgen had seen the patient. In these circumstances the allegation would be more akin to a belated cover up; or alternatively b) It was accepted that Dr Vatsyayann did not realise the record was false but rather continued to believe that he had seen [B]. Although proven to be mistaken in this, his culpability would lie in the fact that these actions by Dr Gilgen were able to occur within his practice, and in relation to a patient who had made an appointment to see him. [36] In my view either situation is very serious. The second of the options is aggravated by the fact that Dr Vatsyayann, on the day in question, signed a prescription for anti-depressants for a sixteen year old young woman who he had not seen and who had come to the Clinic because her regular GP thought it unwise to prescribe her with anti-depressants. If he had not seen her, then there was no legitimate alternative as to who might have. It was not like a multi-practitioner practice where any of a number of doctors might have seen the patient. [37] Notwithstanding the seriousness of the second scenario, it pales in comparison with the implications of the first. The latter speaks of significant negligence and disorganisation. The former verges on the criminal, and could only be met, in my view, with suspension. It is an option that would have gone directly to Dr Vatsyayann's honesty and integrity. It would necessarily involve the implication that Dr Vatsyayann had knowingly allowed a young woman who had come to the practice in relation to mental health concerns to be seen by a person not authorised to do so. [38] I regard it as unsatisfactory that which of these options was being alleged was not sufficiently clear so as to now be beyond dispute. At the appeal Mr Waalkens advised me that dishonesty was never the allegation. Ms Hughson, who prosecuted the matter, to the contrary said it was the allegation. She pointed to her openingaddress where it was accepted that, in terms of the burden of proof, the higher end of the spectrum applied because dishonesty was alleged. This divergence of opinion as to what was being alleged can also be seen in the penalty situation. Mr Waalkens says a $5,000 fine is too high, whereas Ms Hughson had at sentencing sought that Dr Vatsyayann be suspended from practice. [39] In my view this lack of clarity would mean the matter should be reconsidered by the Tribunal unless the Court can be satisfied that the Tribunal approached the matter as if the least culpable option was the operative one. I have therefore reviewed the Ruling to ascertain whether there is a risk that Dr Vatsyayann has been proceeded against in relation to dishonesty in circumstances where it was not adequately made plain that it was being alleged, or that he was in that jeopardy. [40] Mr Waalkens's position on behalf of Dr Vatsyayann is that dishonesty was not alleged, and that the Tribunal has not found any dishonesty. His position on this, which is consistent with the submissions made on the penalty appeal, highlights that this particular concern was essentially driven by the Court rather than being the appellant's position on appeal. [41] Looking at the Ruling, I refer to two paragraphs that Mr Waalkens highlighted as illustrating there was no challenge or finding concerning his client's integrity and honesty:[80] Dr Vatsyayann was friendly and open with the Tribunal about his notes and his lack of recollection of the consultations in question. [119] Particular 3. The Tribunal finds the answer to this question is Yes. This is a significant breach of the doctor's obligations to his patients and the public and it warrants a disciplinary action for protecting the public and maintaining standards and punishing the doctor. The Tribunal's finding is that Dr Vatsyayann did not see [B] on 2 April despite having asserted that he did. This is a significant finding against any medical practitioner where the highest standards of integrity are expected. There is no suggestion that Dr Vatsyayann deliberately asserted that he saw [B] when he did not but there is no getting away from the fact that Dr Vatsyayann has continued to claim he saw [B] despite having no memory of the consultation and contrary to the evidence of his patients. [emphasis added][42] I observe that [119] has some difficulties. The use of the word integrity is puzzling given the next observation that there was no suggestion that Dr Vatsyayann was deliberately asserting an untrue position. If there is no such allegation, why was it a finding that impeached his integrity? I consider integrity must be read in the sense of professionalism rather than personal honesty. [43] The final two lines of [119] of the Ruling reflect a concern which the Tribunal repeats throughout the decision. There are repeated criticisms of the fact that Dr Vatsyayann adhered to the position that he did see [B]. This concern on the part of the Tribunal is, in my view, a further illustration of the lack of clarity about what was being alleged. If Dr Vatsyayann were maintaining his position despite knowing it to be untrue, then it is rightly criticised. Since, however, the Tribunal's understanding is that no such allegation is being made, there should be no criticism of Dr Vatsyayann for continuing to assert that which he believes to be true. It is his evidence based on his beliefs. Given that Dr Vatsyayann was the sole practitioner, and given that Dr Gilgen was not authorised to conduct a consultation with this young woman, or any patient, it is not surprising that Dr Vatsyayann continued to think he must have seen [B], even though there was clear evidence to the contrary. There might be an aspect of closed mind in Dr Vatsyayann's position, but that is the most that can be said. [44] Having reviewed the Ruling with some care, I am of the view that the finding made against Dr Vatsyayann is that his responsibility comes from the second of the options I identified, namely that what happened re [B] occurred without his knowledge but in circumstances of obvious culpability. That is the least of the adverse findings that could be made once it was established that Dr Vatsyayann did not do the consultation. There was accordingly no unfairness in the process, nor an outcome that requires the Court to intervene on an otherwise proven charge.(d) Threshold[45] Since the Tribunal held that this Particular, standing alone, would justify a sanction, it is convenient to deal now with the challenge to that conclusion.[46] In my view it is beyond dispute that the conduct involved in Particular 3 merited sanction, whatever level the threshold test is set at. I reject any suggestion it can be characterised as a record keeping error. The reality is that a patient has been allowed to be seen by an unregistered person. The consultation has been undertaken by a doctor who was at that point suspended from practice. The clinical records of this consultation indicate, however, that a different person has in fact done the consultation. That is a serious mis-statement of the true position. And then, to compound matters, Dr Vatsyayann has signed a prescription for this new patient in circumstances where he has not seen her (as he must have realised at the time) and, if he did not see her, where it must have been the case that she could not have been seen by a registered doctor, and where it must be the case that the unregistered person is recommending that the drugs be prescribed. [47] That scenario strikes at the heart of professionalism and should rightly undermine the public's confidence in the practitioner. It reflects badly on all those involved. It could not possibly be met other than by a sanction.Issue two – Particular 4[48] This Particular alleged that:Dr Vatsyayann produced false and/or misleading clinical notes which assert that, when he was consulted by [B] on 14 May 2007, her carotids, peripheral pulses and abdomen were examined and she was checked for peripheral oedema. He reiterated the accuracy of his notes in the letter dated 11 April 2008 to the PCC.[49] This complaint arose in the same circumstances already described. When [B] saw the medical notes of this visit, a consultation when she did in fact see Dr Vatsyayann, she said that three matters recorded in the clinical notes had not actually taken place. The three items are recorded in the notes in this way:Abdomen NAD No carotid bruit No pitting oedema legs.[50] Dr Vatsyayann's evidence, again reconstructed from the notes, was that these things did happen. As noted he had no independent recollection, so effectively was saying that if the notes record them as having happened, they happened. In his brief he said his practice would have been:Looking, and sometimes feeling if necessary, for swelling of lower leg/foot (pitting oedema) in relation to circulation, to ask about any swelling.[51] And further:[B] states that I did not examine her carotids, abdomen, legs or her feet that day. That is not correct. These examinations, as well as others, were performed during this consultation. I can be sure of this as these examinations are recorded in any notes, which were made during the consultation.[52] In this supplementary evidence Dr Vatsyayann said that in relation to the abdomen he did not examine it, he just asked questions. He responded to the proposition that the notes inferred he had carried out an actual abdominal examination:Abdominal knowledge was transferred. I asked her, have you got abdominal problem, because gastro-eosophegal reflux disease causes sore throat (the reason for [B]'s visit) also so I had to ask if there was any abdominal problem. Had she said yes, I would have done full abdominal examination. That was not required.[53] Neither Dr Vatsyayann's brief of evidence, nor his supplementary evidence, provided evidence as to what his use of that expression – i.e. Abdomen NAD – would signify in terms of his standard procedures. [54] The prosecution had called an expert to give evidence about the notes and what they suggested to him. This witness had also gone on to comment on the adequacy of Dr Vatsyayann's actions, and what a proper examination should have involved. Mr Waalkens had objected to this latter evidence since there was no charge of improper treatment. I consider it was a well made objection. That part of the evidence should not have been there. Ms Hughson's explanation that it helped concerning how long the consultation might have taken had these things been done is satisfactory in so far as the evidence was used to support the challenge to theaccuracy of the notes. It does not explain, however, how a commentary on the medical merits of what Dr Vatsyayann believed he did was relevant. [55] I refer to this dispute because one of Mr Waalkens concerns is that, having agreed to put this evidence to one side, the Tribunal then nevertheless factored it in when making its assessment of whether the Particular was proved. [56] In support Mr Waalkens refers to the Tribunal's reasoning on Particular 4:105. In respect of Particular 4, Dr Vatsyayann's evidence is that he listened with his stethoscope to [B]'s chest and felt her neck. He said he asked her about her tummy and looked at her feet. The issue for the Tribunal is whether or not the entry in the notes which shows notes that certain examinations or observations were carried out means that the notes were false and/or misleading. The first step, however, is to determine whether or not Dr Vatsyayann did in fact do these examinations or observations. It seems certain that notwithstanding any issues about whether or not the patient could recollect all of the examinations that were carried out upon her, Dr Vatsyayann did not carry out the examinations set out in Dr Lillis' brief of evidence which Dr Lillis said were the standard assessment for those conditions. This reflects Dr Vatsyayann's own evidence. He confirmed that he did carry out some tests on [B] but the Tribunal must determine whether or not the notes are misleading to others or not. 106. The Tribunal does find that the notes are misleading in that the list of tests/examinations or observations created by a Hot Key does seem to suggest a thorough and detailed examination of the areas of the body such as carotid, peripheral pulses and abdomen and peripheral oedema were carried out when they were not carried out except in a very cursory way. The phrases used have a commonly understood meaning for doctors. For example, asking [B] whether she had any tummy problems the Tribunal finds does not constitute abdominal examination sufficient to use the words "abdomen NAD". The Tribunal considers that notes must have the ability to be read universally otherwise any subsequent doctor treating either patient would believe that these tests had been carried out in any accepted way.[57] It is submitted that it is apparent that the Tribunal has based its finding on the adequacy of what was done rather than the charged Particular which was that these examinations were not done at all. The references to thorough and detailed examinations are an illustration of irrelevant considerations.[58] To assess the validity of the challenge it is necessary to refer to other parts of the Ruling. I set out paragraphs 111 and 112 where the Tribunal formally addresses step 1 of the process. Those paragraphs read:111. The questions are therefore: Question 1 Do the notes assert an examination of the carotids, peripheral pulses and abdomen? Answer Yes. Despite Mr Waalkens submission that the notes do not use the word "examination" or "OE", these phrases do have commonly understood meaning and do tell a doctor that the commonly understood examinations were carried out. Question 2 Were the examinations carried out? Answer No, see above. Dr Vatsyayann describes his examinations and even on his evidence they were not examinations. Question 3 Did Dr Vatsyayann therefore produce false or misleading notes? Answer Yes, the notes were misleading as they may subsequently mislead other doctors as to [B]'s health. 112. The Tribunal finds this particular established on the facts.[59] The observation under question 2 is telling. The Tribunal's view is that what Dr Vatsyayann said he did could not rightly be classified as an examination. That is an assessment of the Tribunal to which I consider deference is rightly paid. However, I make two other points. It is an assessment that coincides with a layperson's intuitive view of the situation; a cursory observation of a patient, and a general question, hardly suggest that an examination has been done. Second, it should be recalled that Dr Vatsyayann does not know if he even did what he says he did – i.e. observe. He is surmising, and, at least on the state of the evidence, obviously cannot fall back on any settled practice concerning the entries in the notes. [60] Returning to paragraphs 105 and 106 of the Ruling which were cited earlier, I consider they are to be read not as critiques on what Dr Vatsyayann did, but as identifying what the terms used in the notes would suggest to a medical practitioner relying on them. This process necessarily involves setting out the steps thatsomeone would assume had been done in order to reflect the entry "Abdomen NAD". Once those characteristics are identified it then becomes a question of whether the prosecution has proved that Dr Vatsyayann did not do those things. If he did not, the entry in the notes is misleading. I am accordingly of the view the Tribunal did not err in its reasoning process or go beyond what was alleged. I also agree with the conclusion – indeed there is not really any evidence contrary to the evidence of the witness that such an examination was not done. [61] This discussion has focussed only on one aspect of the allegations in the Particular – namely the entry about an abdomen examination. However, Mr Waalkens advanced the submission that all three components of the Particular needed to be proved in order for it to be established – i.e. it was necessary to prove inaccuracies in the notes in relation to all three items listed in the Particular in order for the Particular to be proved. [62] Mr Waalkens did not proffer authority in support of this but instead relied on what he said was the natural reading of the charge. I disagree. In my view proving any one of the three makes good the allegation because it necessarily means that the clinical record is therefore incorrect and misleading. How many inaccuracies are proved, and how significant those inaccuracies are, will obviously inform the step 2 threshold analysis, but the prosecution is not required to prove all three as if they were elements of an offence. To hold otherwise would necessitate a pointless proliferation of individual Particulars. Here, for example, Particulars 4 and 5 would instead become seven separate Particulars in circumstances where nothing would be gained from such a change. Indeed unnecessary proliferation carries its own risks of obscuring the core allegation. [63] I accordingly am of the view that Particular 4 was proved.Issue three – Particular 5[64] Particular 5 concerned a different patient. It was alleged that Dr Vatsyayann:Produced false and/or misleading clinical notes which assert that, when he was consulted by [X], he took a full family and personal history and examined her carotids and legs.[65] As with [B], [X]'s initial complaint about the consultation related to a different matter. It was only when she saw her clinical notes that these allegations of incorrect entries emerged. [X] had experience at a medical centre as a receptionist so, whilst not in any sense a practitioner, was not unfamiliar with processes within a medical practice. [66] Concerning the allegation that the entries about carotids and legs were incorrect, the Tribunal found that examinations of those areas were not done at all. Concerning the allegation about the family history, the Tribunal concluded:[The notes] assert that there was no family history of certain diseases. This was wrong but there was no assertion of full family and personal history, except insofar as this can be implied from family history noted.[67] I take this finding to be that the notes do not expressly say, as alleged in the charge, that a full family and personal history was taken. Nor seemingly do they use a common expression that carries a well recognised settled message within the profession. However, in the Tribunal's view the entries that are made – "No h/o DM, heart disease, stroke, CA" – could carry an inference that a full history had been taken. [68] Mr Waalkens primary concern with this conclusion is similar to Particular 4 in that it appears the ground has shifted from an allegation that no full family history was taken, to an allegation that the notes contained errors in the information recorded about the family history. I accept that the charge here is that the notes assert that "a full family and personal history" was taken. The Tribunal seems to back off a finding that this is the meaning of the actual entries in the clinical record, and so this aspect of the Particular should have failed [69] Concerning carotid and legs, the Tribunal concluded:Question 1 Did Dr Vatsyayann's notes assert examination of carotids and legs?Answer Yes. The carotid is examined by feeling the pulse and listening with the stethoscope over the pulse in the neck. Legs are examined by close inspection of the legs and feeling the pulses and for peripheral oedema; when not apparent on simple inspection, by application of pressure to indent the skin. Dr Vatsyayann did not carry out these tests.[70] The appellant makes two specific complaints in relation to this. First, the conclusion that the clinical notes assert an examination is challenged. Second, it is submitted that the Tribunal has again based its decision on the adequacy of what was done, rather than whether, as charged, Dr Vatsyayann wrongly asserted he had examined the patient in the ways recorded. [71] To take the second of these points, I do not read the Tribunal's answer that way. Rather, as with Particular 4, having found that the clinical notes assert an examination of carotid and legs, the Tribunal sets out what such an examination would involve. This is a necessary step in determining whether the clinical notes reflect what occurred. The Tribunal's finding that Dr Vatsyayann did not do this type of examination is not challenged. [72] The key issue, therefore, becomes whether the entries in the clinical notes represent an assertion that this type of full examination had been done. The appellant makes two points: a) first, in another part of the notes there is a reference to "vulval examination". The absence of the word examination elsewhere in the notes tells against those entries asserting it; b) second, Dr Lillas, the prosecution expert, accepted an examination need not be physical. Accordingly, the evidential base is not there to suggest that the entries used in the clinical notes conveyed the message that examinations of type described by the Tribunal were done.[73] I have reviewed the evidence of Dr Lillas, but am of the view it does not go as far as the appellant suggests. Dr Lillas remained of the view that the notes suggested a physical examination, rather than an observation which was the contrary view advanced by Dr Vatsyayann. (Again, given the absence of any memory or settled practice, the basis for this evidence from Dr Vatsyayann that the entry referred to a lesser form of examination is not clear). [74] The meaning of the entries in clinical notes seems to me a matter that does fall quite centrally within the Tribunal's expertise. Further, there was a clear evidential base to support its assessment, and very little contrary evidence. This challenge fails.Issue four – Threshold inquiry re Particulars 4 and 5[75] The Tribunal ruled: a) that 4 and 5, taken together but standing apart from Particular 3, were insufficient to meet the threshold test; b) that 4 and 5 should, however, be added to the totality of the breaches in considering whether the threshold was met. [76] Mr Waalkens challenges this, essentially on the basis that the errors in Particulars 4 and 5 were at the de minimis end of the scale and should have been put to one side. In support of this, Mr Waalkens relies primarily on three factors. [77] First, in his submission there has never been a misconduct charge established solely on the basis of what he terms note taking errors. There are plenty of examples of charges of inadequate or incorrect note taking, but it is noted that they are always additional to a core allegation of more fundamental misconduct or error. Second, mistakes in general practice are recognised to be common, and so there should not be an over-reaction to them. Mr Waalkens referred the Court to two articles which recognise that mistakes are common. One is by the present Health and Disability Commissioner, Mr Ron Paterson. The second was co-authored by the prosecutionexpert in this case, Dr Lillas. I add for the record that neither author, whilst recognising errors happen, seeks to minimise the importance of mistakes. Third, there was evidence that the entries may have been caused by careless use of "hot keys", which are just an example of macros. A specific command inserts into the note a complete standard entry, which should then be modified to suit the particular situation. [78] It is doubtful that anything turns on this challenge, since along with the Tribunal, I consider that Particular 3 was sufficient on its own to make good on the charge. However, for the record I also agree with the Tribunal that these other two Particulars were relevant. [79] Addressing Mr Waalkens' points, the fact that note taking charges do not usually stand alone is no impediment to them doing so in an appropriate case. More fundamentally, it seems to me an unhelpful label. The seriousness of the situation will inevitably depend on the nature of the error. Here, for example, Particulars 4 and 5 were more than misdescription. Rather, in several respects the notes conveyed the message that checks had been undertaken which had in fact not been. Whilst it is undoubtedly the case that errors occur, that is not in itself a basis to put them to one side. [80] In my view the Tribunal was right to see numerous examples of incorrectly saying that examinations had been done, when they had not, as adding to the overall culpability. They are not wholly different in type from the primary breach represented by Particular 3. [81] The "hot keys" point seems to me irrelevant. It might provide an explanation for how errors occur, but it cannot excuse them or change their significance. The Tribunal plainly considers that it is important for patient safety to keep accurate notes. That is not a surprising viewpoint, and is one I consider the Court should rightly attach considerable weight to. It is a specialist body well able to appreciate the importance of such matters.[82] In my view the Tribunal was correct to include Particulars 4 and 5 in its final assessments of whether a sanction was required.Conclusion on appeal against imposition of sanction[83] All challenges fail. The Tribunal rightly found each Particular proven, and rightly held the threshold to be met.Penalty[84] Dr Vatsyayann was fined $5,000, against a maximum available penalty of $30,000. He was ordered to pay 20% of the Committee's costs, and 30% of the Tribunal's. He appeals all orders. [85] I see no merit in the penalty appeal. In paragraph [46], when discussing whether Particular 3 met the threshold for a sanction, I made some observations on the implications that must flow from a finding that Dr Vatsyayann did not see [B]. They were expressed in general terms, without specific reference to the particular patient. That is because the errors, as proceeded with, were largely process. [86] However, consideration of the specific cases highlights the reasons for concern. The appointment was for a young woman aged sixteen. She had seen her regular GP who had declined to prescribe her anti-depressants. What happened at Dr Vatsyayann's practice was that the consultation concerning her mental health was conducted by a suspended doctor who had no registration to carry out consultation. Then Dr Vatsyayann, not having seen her or this occasion or indeed before because this was a first visit, signed a prescription for this sixteen year old woman to receive anti-depressant medication. In my view that conduct significantly compounds the fact that the circumstances of the practice were such that the consultation could be conducted by a non-authorised person[87] My assessment is that the penalty is lenient. Further, I am advised that the present costs awards are less than is often imposed, so again I see no basis for complaint given my assessment of the culpability underlying what occurred here. [88] Finally concerning costs, Mr Waalkens has recently been provided detail of the breakdown. There are matters included which are the subject of challenge. Counsel were agreed on the principles so no ruling is needed from me on that aspect. It is a matter of ascertaining to what some of the line items relate. The identified costs were also GST inclusive and that is to be adjusted. [89] The appeal against penalty and costs is also dismissed. On the face of matters, the respondent is entitled to scale costs on the appeal. If either party seeks a different position on costs, memoranda may be filed. ___________________________ Simon France JSolicitors: A H Waalkens QC, PO Box 106215, Auckland, email: waalkens@quaychambers.co.nz J C Hughson, Barrister, Wellington, email: jo.hughson@xtra.co.nz