I, MS HELEN STANLEY-CLARKE, aggrieved patient, have written the following article.
I have sworn the contents are a true overview of my dealings with surgeon concerned and entities mentioned in a statutory declaration; this document is in the hands of Independent Australia. The evidence lies within the files of the Queensland Health Quality and Complaints Commission (HQCC), the Australian Health Practitioner Regulation Agency (AHPRA), Queensland Civil and Administrative Tribunal (QCAT) and the Queensland Supreme Court.
In October 2010, I lodged an official complaint with AHPRA regarding the ethics and performance of this Australian cosmetic plastic surgeon. What transpired was heartbreaking from a patient viewpoint ― with the fundamental question never answered.
CONTENTS
Part 1: The Surgeon (FRACS)Part 2: Complaint to AHPRA – The Allegations / Board Decision
Part 3: Questioning the Board Decision
Part 4: The Board Take Legal Action - QCAT
Part 5: Online Petition - Mandatory Oath Of Impartiality - Ministerial Council
Part 6: Legal Action against AHPRA / the Board for breach of Statutory Duties
Part 7: Possible Conflict Of Interest? Is This Legal?
Part 8: Complaint to Crimes and Misconduct Commission - Possible Misconduct Conclusion
Conclusion
TIMELINE
PART 1:The Surgeon (FRACS)
In August 2008, I pre-paid in excess of $11,000 in surgical fees alone to a surgeon’s agent for a hernia repair and abdominoplasty (“tummy tuck”).
The arrangements for surgery were made by the agent for the surgeon, in conjunction with the surgeon and his practice manager. The surgeon viewed photos of my abdomen, with more offered but not requested. Pre-surgery consultation was scheduled for 28 August 2008, with surgery scheduled for the next day. I took two weeks leave from work, booked and pre-paid my return flights and airport to hospital return cab fares. I entered the private hospital around 2pm on 28 August 2008.
The pre-surgery consultation took place as arranged. In this approximately 15 minute consultation, the surgeon examined my abdomen whilst explaining the procedure, obtained my written consent, scribbled a few notes on a small envelope and ordered the necessary nursing preparation. He did not mention any possible complications. Nursing staff was present during this consultation, as well as the following morning at the pre-surgery consultation.
At around 7am the next morning, the surgeon entered my hospital room and stated he could not perform any of the planned surgery as
“a slight nick here or there could be life threatening."I was stunned and burst into tears.
This had been planned for weeks, so why hadn’t he said something before now?
Rather than vacate my hospital room, he went on to state he could perform a full facelift and U/L (upper and lower) blepharoplasty (eyelid surgery) for the same price I had pre-paid for the abdominal surgery — ifsurgery could go ahead as planned.
Being in a distressed state and physically vulnerable, I saw his proposition as the only solution, and verbally agreed. Had he divulged the possible complications the previous evening, further options could have been explored — should I have requested it.
It was later disclosed to me that the theatre was booked for 4 hours (8am – 12 noon) and that it was physically impossible for him to safely and efficiently perform the offered alternative procedures in that time ― which he didn’t. Duringsurgery he changed his mind and performed a procedure, unheard of by me at the time, called an S-Plus Lift (short scar, long flap rhytidectomy or facelift). This procedure takes significantly less time to perform, costs significantly less and is supposed to offer a relatively scar free result. He did perform the U/L blepharoplasty (unfortunately).
The result of the surgery itself was both disastrous in quality as well as personally devastating. Many emails ensued between myself and the surgeon’s practice manager and agent.
In mid-December 2008, I flew to the city for the post-surgery consultation. The surgeon offered no explanation for the following:
- 6cm incisions still clearly visible and deeply painful on the soft part of my temples;
- a plethora of incisions around my eyes;
- deeply painful eye sockets;
- a half-completed right eye;
- the left side of my face being much tighter than the right, resulting in a speech impediment;
- non-existent lips;
- crooked and bunched-up mouth;
- continuous salivation in the left side of my mouth; and
- a painful saliva gland in the left side of my neck.
For the national rebate, he did offer to perform a vaguely explained procedure attempting to re-locate the right temple scar and finish off the right eye. This meant another significant cash outlay for me for all the additional costs involved. At this point, as I had not had any dealings with this surgeon that could foster a measure of trust, I advised his practice manager that I would seek a second opinion.
I suffer from major depression, an illness stable on a low dosage anti-depressant medication at time of surgery. However, the facial disfigurement and resulting loss of self-esteem and confidence, combined withthe surgeon’s lack of concern for me as a patient caused me to become very deeply depressed. I became increasingly ill at ease in public, acutely aware of my facial disfigurement and still find myself now, 4 years later, a social hermit who spends many hours in a state of panic because of the need to drive 500 metres to the supermarket.
The events of the past 4 years have affected me deeply, and could have been avoided if this surgeon had been honest with me at the pre-surgery consultation and on the day of surgery. It was legally fraudulent for him to offer the stated procedures knowing he could not safely and efficiently perform them in the given time. Furthermore, it was an abuse of trust. I had placed my trust in him, assuming he would not offer to perform a procedure I did not need. His later explanation, when questioned on why he did not perform the requested procedure, was simply “you didn’t need one”. I believe the alternatives offered were fraudulent inducements to use his services thereby avoiding a refund of my money.
Unsatisfied with his actions, deeply depressed and not knowing what to do, I lodged a complaint with the Queensland Health Quality and Complaints Commission (HQCC) in April 2009. During the process, HQCC gained an opinion from an independent expert, as did I. HQCC’s expert was extremely critical of the surgeon, suggesting he should be bending over backwards to remedy the situation; the plastic surgeon I consulted said there was nothing he could do for me surgically and the surgeon would be the only person who could explain the scar-placing. This “independent expert” clearly wanted no part in any dispute, and did not charge a consultation fee as he was unable to help me. HQCC also obtained hospital records from the private hospital and surgical notes from the surgeon. In November 2009, the decision made in conjunction with the Medical Board was that “further action needed to be taken” and conciliation was suggested to settle the dispute. Both the surgeon and I verbally agreed.
Conciliation is voluntary. When more than months had passed and no progress had been made in any regard, I withdrew, realising it to be a waste of time without the co-operation of both parties. I decided to pursue a more direct approach. In September 2010, I sent a registered letter to the surgeon, asking him directly if he would like to settle the dispute. He did not reply.
In October 2010, I lodged an official complaint with the Australian Health Practitioner Regulation Agency (AHPRA), regarding his ethics and performance. He provided a blatantly untruthful submission to this agency regarding his dealings with me as his patient. Despite evidence already in their possession from the HQCC and myself proving his account untruthful, AHPRA and the Board accepted this surgeon’s account of events without question and without investigating any of the conflicting details. In April 2011, AHPRA advised “no further action would be taken” as the notification “lacked substance”, further adding later:
'...the results were within the normal range of outcomes for this type of surgery.'
That was odd. In their recommendation of November 2009, HQCC and the Board had concluded “further action needed to be taken”; that no conciliation issues had been addressed; that the surgeon had resisted the direct approach; and, moreover, the “lack of substance” – a generic response – was entirely unexplained. I conveyed to the state manager for AHPRA, in writing, my opinion the whole thing “stank to high heaven”.
I could not understand what had caused the complete turnaround, because I had no knowledge of the surgeon’s untruthful submission of 6 January 2011 until after receiving a copy of the AHPRA file on 8 August 2011, after this was requested in early June.
The time limitation for taking legal action was drawing to a close. Still no closer to any explanations, I lodged an application with the Queensland Civil and Administrative Tribunal (QCAT) for a 12 month extension to pursue the surgeon personally, if necessary. QCAT accepted the application, but in the following 12 months would not reply to any emails regarding this extension or provide any answers. The limitation expired leaving me with no obvious options. Research of the Code of Conduct for Medical Practitioners and many State laws supported my view the surgeon had a case to answer.
On 26 October 2011, I received a copy of the actual theatre times through the Office of Fair Trading. I now knew the theatre booking time and the actual surgery times.
The surgeon had taken a maximum time of 3 hours and 40 minutes operating on me; under the 4 hour booking. 40 minutes was spent on the U/L blepharoplasty, which his website states takes between 1 and 2 hours. This could explain the disastrous results in that area. The remaining 3 hours were spent on the significantly inferior S-Plus Lift. The website for the surgeon’s agent describes this procedure; it does not require incisions anywhere near the temples — so why are they there? What happened during that 3 hours and 40 minutes to cause such disastrous results — the surgeon was not elaborating and AHPRA and the Board certainly wasn’t asking.
The two most relevant documents in the files received were the surgical notes supplied to HQCC during their investigation and the surgeon’s submission to AHPRA on 6 January 2011. Both these documents are untruthful and legally fraudulent. The obvious question: Why did he lie? I allege; because he knew from the beginning his actions had been unlawful and unethical and he was protecting himself at any cost to the patient. This is an undesirable trait in any person, but in a medical practitioner who has taken the Hippocratic Oath and relies on the trust of his patients and the community in general, I found it most disturbing.
This surgeon is a fellow of the Royal Australasian College of Surgeons (RACS) and I also researched this website. From the data on this site, it would appear their fellows are the cream of the crop. But, surely, the cream of the crop wouldn’t act in such a deceitful manner. Surely this behaviour would not be acceptable to an organisation that prima facie appears to consist of members who are the epitome of upstanding honesty and integrity. I wrote to RACS regarding the actions of this surgeon attaching documents to support the allegations I had made.
An RACS representative advised:
“I am seeking his response to your claims and accusations and will be in communication with you when this has been progressed further”.
I’ve no idea what the surgeon’s comments were but I was eventually advised:
'I find that there has been no breach of the Code of Conduct by Mr X as you allege.'
and
'This letter is to inform you that from the point of view of the College of Surgeons the matter is at an end and no further correspondence will be entertained.'
This response was also disturbing; the RACS is a College, they train surgeons. What kind of standard is being set here? Is it a common occurrence for surgeons to blatantly lie about their dealings with a patient? Am I being unreasonable in expecting the truth and some kind of accountability from this surgeon?
Early in June 2012, unable to secure a solicitor because of the time limitation issue, I lodged a Claim and Statement of Claim in Supreme Court against the surgeon. As with the claim against AHPRA and the Board, my presentation was metaphorically torn to shreds. I failed to provide a cohesive argument for extending the limitation and the Judge dismissed the claim. However a comprehensive list of reasons was provided, some encouraging to the meritsof the claim, so I addressed the issues and appealed the decision — which is still pending. The surgeon is still resisting all endeavours to uncover the truth, depending on legal technicalities, and still he has never had to answer to anybody for his actions.
Part 2: Complaint to AHPRA – The Allegations / Board Decision
On 6 October 2010, I lodged the formal complaint with AHPRA. The allegations are required on the official form and I listed eight.
On 18 December 2010 I provided the Senior Assessment Officer for AHPRA (the SAO) with a copy of a document from the HQCC files proving the originally planned and pre-paid surgery was a hernia repair and abdominoplasty, as stated by me. I also provided the SAO with copies of three letters to the private hospital requesting the theatre times and what they could reasonably suggest when obtained.
Unknown to me at the time, the surgeon provided the same SAO with the submission of 6 January 2011 regarding the allegations I had made.
In due course, the SAO advised a decision should be made within 60 days. Health Practitioner Regulation National Law Act requires a decision within 60 days. At 90 days, in reply to an email regarding progress, she advised 60 days was just a guide. It is not a guide — it is the Law according to the Act. Furthermore, even allowing for the month it took for the complaint to proceed from AHPRA NSW to AHPRA Qld (the surgeon had a NSW address at this time), it took an additional six months to reach a decision and advise me, instead of the requisite 2 months.
This decision had been made in mid-February of 2011. However, I received notification around 8 April 2011, six weeks later. At the very least this indicates gross inefficiency within AHPRA — or it could be interpreted as a stalling tactic.
As stated in Part 1, the decision was
'...no further action to be taken as the notification [complaint] was lacking in substance.'It also stated that “the results were within the normal range of expectations for this type of surgery”, which was refuted as revealed in Part 7.
The obvious questions were:
- where was the lack of substance?
- what standards were used to conclude the results were normal?
- to whom may I appeal the decision?
I conveyed this to the SAO but was told, in no uncertain terms, a decision by the Board is neither reviewable nor appealable. My only option was to seek legal advice. This seemed to fly in the face of the aims of the NRAS (National Registration & Accreditation Scheme); how could a State branch of the Board wield such power that a decision by those members was above question? The integrity of the scheme is protected by legislation providing penalties for non-compliance by individuals having functions thereunder. However, this provision is of no benefit to the public of Australia or the aims of the NRAS if individual members are not held accountable for their actions. The public and the Ministerial Council are required to put their trust in these people. Lies about a surgeon’s dealings with his patient and the condoning of such by AHPRA and the Board do not promote trust. Compliance is required, but who enforces it? That is the elephant in the room.
Part 3: Questioning the Board Decision
Between April and June 2011, I corresponded with the SAO and her assistant regarding the decision. She stated the decision was not open to appeal but if I presented a “new angle not previously considered by the Board”, they “may consider it”. She did not state what this possible consideration depended on.On 19 April 2011, I submitted a new angle to the SAO. On 29 April, she replied to my query and advised she had not presentedthis new angle to the Board, reminding me again the decision was not open to review or appeal. In June, I received advice that this new angle had been considered, in conjunction with the original decision of February 2011, and the decision was unaltered.
I lodged a complaint with AHPRA Complaints regarding the handling of the case by AHPRA; in return I was assured by the State Manager everything I had presented, including the new angle the SAO advised she had not presented to the Board, had been considered. It also confirmed a decision of the Board was not reviewable.
Research revealed the National Health Practitioner (NHP) Ombudsman Office in Victoria can review a decision by a National Agency, and that QCAT was revealed as the relevant Tribunal for Health Practitioner Law, providing other avenues of recourse to legal advice.
During July and August 2011, I lodged applications with both the National Health Practitioner Ombudsman and QCAT for a review of the Board decision. QCAT accepted the application immediately and the NHP Ombudsman later claimed them to be a higher authority in this instance.
Part 4: The Board Take Legal Action — QCAT
QCAT arranged a Tribunal Directions Hearing for the Review Application for 28 October 2011. On 25-26 October, the theatre document arrived. From the AHPRA file, I found the Agenda Papers for the decision and the surgeon’s blatantly untruthful submission of 6 January 2011.The Agenda Papers revealed none of the allegations had even been considered during the process and I immediately advised QCAT of these new developments. Two days later, legal representation for the Board appeared, without prior advice, at the Tribunal Directions Hearing requesting the application for a review be struck out. I defended the application with a detailed submission to QCAT regarding the Board decision, however the issues were not addressed.
The Board made it clear if I did not withdraw my application for a review they would seek costs at indemnity rates from me. I was mortified — why would they do that? If QCAT were unable to deal with the subject matter, they were empowered to transfer the application to a more appropriate forum or reject it outright; legal action was not required by anyone. I allege this to have been a bullying tactic.
I tried, but could not find a solicitor who would represent me against the Board. I proceeded to defend and support the merits of my application for a review — the Board focused entirely on the legal technicality of QCAT being unable to review the decision themselves.
They won, however the judge recognised a lack of evidence suggesting improper motive by myself and awarded only standard costs. The Board immediatelysought this $7,189.80 from me, claiming the action had been funded from members contributions. I appealed to QCAT, lodging a submission. Again, none of the issues were addressed and the merits for a review went ignored.
Part 5: Online Petition - Mandatory Oath Of Impartiality - Ministerial Council
Between February and May 2012, I wrote to Queensland Health, two Queensland Premiers, Prime Minister Gillard and the Ministerial Council regarding my experience with AHPRA, the Medical Board of Australia decision and the surgeon. Although I received responses, they contained no answers to the fundamental question, which has always been:
How can a decision reached by ignoring the conflicting account of events surrounding the planned surgery and the actual surgery, and, evidence already provided by both HQCC and myself supporting my version of events, be fair and impartial as required by National Law?
I considered it wrong and resolved to do something about it.
In the interests of all Australians, I think each individual involved in the process relating to public complaints about medical practitioners should take a mandatory oath of impartiality before being placed and be held accountable for the decisions they make.
To this end, I put together an online petition now directed to the appropriate Government Department. Public rights are protected under law and I could be anyone seeking to have a medical practitioner held accountable for his actions. It should not be difficult and it should not have to result in legal action.
During this period I also became aware of two Communiques from Medical Board of Australia meetings in February and April 2012. According to these communiqués, the Ministerial Council was aware of no standards being available which the Board could have used to truthfully make the statement:
'...the results were within the normal range of expectations for this type of surgery.'On 2 May 2012 I wrote to the Queensland Representative of the Ministerial Council concerning these communiques and my petition. The following two excerpts state:
'This document [Feb Communique] highlights some of the concerns I have had in relation to the surgeon in the case I am still involved in. However the workforce of the entities involved to investigate the public complaints are still responsible for monitoring the new regulations. The integrity of each of these individuals is still in question – will they adhere to the principles, guidelines and Laws associated with the Scheme – or won’t they? A mandatory oath of impartiality and responsibility for the decisions they are making appears to be a must, I was actually surprised it had been overlooked.'And:
'The reason for this letter is to firstly advise of the petitions existence and object; secondly to suggest victim impact statements be obtained to measure the psychological damage caused by these either unethical or in some cases unskilled surgeons. An update to legislation as proposed in the petition would go a long way in staunching the rapid rise in medical negligence claims against medical practitioners and the standard of practice would have to improve as a result. So the aims of this petition are in line with the NRAS strategy for the National Scheme.'I received a positive response. It was stated my concerns would be relayed to the Ministerial Council, the appropriate department for the petition was named and the legislative provision protecting the integrity of the Scheme was provided.
Whilst involved with this petition, two other petitions involving the Medical Board of Australia and AHPRA came to my attention. Although not related to my experiences as an aggrieved patient, they do involve the internal workings within these entities — from different perspectives. It appears even medical practitioners have grounds to question these internal workings. Three separate petitions from three separate viewpoints point to a systemic failure.
Part 6: Legal Action Against AHPRA/ the Board for breach of Statutory Duties
On 31 May 2012, without legal representation, I lodged a Claim and Statement of Claim in the Supreme Court suing AHPRA/Board for breach of statutory duties in failing to provide a fair and impartial decision on a legitimate public complaint regarding a medical practitioner. The presentation was metaphorically torn to shreds, understandable considering my lack of legal training, with some details even labelled vexatious. The claim was dismissed.Once again, costs were awarded against me at the standard rate —$7,189.80. Extensive reasoning was provided to support the decision. It seems I was unable to take the matter before Supreme Court as it was the wrong forum. I’m not questioning the Judge’s decision, I do not claim to know enough to do so. However, once again, technical legal issues stood between me and uncovering the truth.
Approximately two weeks later, I received a letter from solicitors representing AHPRA/the Board stating they would not seek payment of any costs from me provided I agreed to specific terms and returned the agreement within 14 days. I did not sign the agreement. To date they have not sought payment. I wonder what the members think of that.?
Part 7: Possible Conflict Of Interest? Is This Legal?
As stated in Part 1, I have now lodged a Claim against this surgeon that he is legally resisting.
His defence, in addition to my lack of legal training, is the expiry of limitation whilst the application for an extension was with QCAT. I never disputed the limitation period, however, in an unnecessary effort to prove the point, the surgeon provided four Exhibits to the Supreme Court. All exhibits are copies of emails, neither to nor from him, and provided on what appears to be an unofficial basis. The actual content of the emails is not in dispute, but how was he able to obtain these emails without applying through Freedom of Information?
Of the four Exhibits, two were emails provided by a solicitor who was the legal representative for the Board when they took legal action to prevent my review application progressing with QCAT, having since left that firm. The surgeon would not have a legal right to these confidential emails from a QCAT case in which he was neither defendant nor applicant.
The other two Exhibit emails do not state the source. However, on the face of it, they appear to have come from either the SAO, her assistant, or from someone with access to their confidential case file emails. The surgeon would have a legal right to these documents had they been presented as documents from the AHPRA file released to him through the Freedom of Information Act. As they are not, they are unofficial copies. I find this questionable, and that a possible conflict of interest may exist.
Part 8: Complaint to Crimes and Misconduct Commission — Possible Misconduct
During the petition process, I became aware of the Crimes and Misconduct Commission and visited their website. It suggests they can investigate a complaint about the entities in question. On 11 October 2012, I lodged a complaint, specifically requesting the actions of the SAO in relation to the original complaint be investigated and also the manner in which the surgeon’s four exhibits were obtained. At time of writing, they have not responded.Conclusion
After all the official letters and events that have transpired since the decision was made by the Board in February 2011, the fundamental questions in my case have not been answered.I do not know why the conflicting account of events was not even questioned, why the evidence was ignored, or why the Board found it necessary to take legal action to prevent a review of the decision, when QCAT were empowered to reject the application themselves if they so decided.
In the interests of all, practitioner or patient, any complaint should be handled by these two entities with the impartiality and transparency required by law. Untruthful submissions by any party should not be tolerated, let alone condoned.
TIMELINE
August 2008: $11,000 prepaid in surgical fees for hernia repair and abdominoplasty28 August 2008: At approximately 2pm, admitted to private hospital, had first pre-surgery consultation with surgeon.
29 August 2008: Approx 7am, surgeon deemed hernia repair and abdominoplasty could be life threatening. Suggested full facelift and U/L blepharoplasty instead for same price instead. H S-C agreed. 8am-11:40am: Surgery took place, but for S-Plus Lift and U/L blepharoplasty.
Mid-December 2008: Post surgery consultation, H S-C expressing dissatisfaction with results to Surgeon.
April 2009: H S-C lodged complaint with HQCC. Hospital records and surgical notes from Surgeon obtained.
November 2009: HQCC and Medical Board decide “further action needed to be taken” and conciliation suggested to settle dispute, with both parties verbally agreeing.
September 2010: H S-C sent registered letter to Surgeon requesting settlement. No response.
6 October 2010: H S-C lodged official complaint with AHPRA regarding Surgeon’s ethics and performance.
18 December 2010: H-SC provided AHPRA SAO copy of documents showing original documents regarding required surgery.
6 January 2011: Surgeon denied allegations.
Mid-Feb 2011: AHPRA decision made.
8 April 2011: H S-C received notification from AHPRA advising “no further action” due to “lack of substance”.
19 April 2011: H S-C submitted new angle to SAO.
29 April 2011: SAO advised H S-C that decision not open to review or appeal.
June 2011: H S-C received advice that new angle had been considered but decision was unaltered. H S-C requested file from AHPRA.
8 August 2011: H S-C received file with surgeon’s letter of denial to AHPRA.
Mid-August 2011: H S-C lodged application for 12 month extension to QCAT to pursue surgeon, if necessary. Application accepted by QCAT, but no response received.
26 October 2011: Office of Fair Trading provided copy of actual theatre and surgery times.
Early June 2011: Claim lodged personally in Supreme Court against Surgeon. Judge dismissed claim. Board immediately sought costs ($7,189.80) from H S-C.
July-Aug 2011: Appeals lodged with HPRN Ombudsman and QCAT for review of Board decision.
28 Oct 2011: QCAT Tribunal Directions Hearing for the Review Application. Result: judge awarded standard costs from H S-C.
Feb-May 2012: Communications with Queensland Health, two Queensland Premiers, and Prime Minister Gillard regarding AHPRA and Medical Board decision.
31 May 2012: Lodged Claim and Statement of Claim in Supreme Court, suing AHPRA & Medical Board for breach of statutory duties. Claim dismissed; costs awarded at standard rate ($7189.90).
Mid-June 2012: Letter received from AHPRA/Med Board solicitors, stating costs would not be sought, conditional on signing and returning letter of agreement within 14 days (which was not signed, returned, or requested).
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