Detached from reality? Law and the expectations on neonatal / paediatric trainees

Timothy Bowen – Senior Solicitor – Advocacy, Claims & Education

Informa Obstetric Malpractice Conference 9 August 2016

Why this talk?

• Disconnect between medicine and law

• Experiences of trainees

• Looking for the ‘art of the possible’

The talk

• Realities and challenges

• Expectations – clinical, civil law and regulatory

• One night in a suburban hospital…

• Is there a better way (within reality)?

Neonatal / paediatric realities and challenges

Trainee challenges

• Looking after their patients well

• Progressing through training

• Developing the skills they need, clinically, procedural, personally and ethically

• Staying out of the eye of the regulator

Dealing with realities

Trainee practice• Still learning - ‘have a go’

• First time for everything

• Better at some things, worse at others, than more senior

• Can’t always get the opportunities want / need

• Sometimes feel / are thrown in the ‘deep end’

• Varied supervisors

Law• Protect the public

• Regulate the profession

• A consistent measurement of practice standards

Paediatric realities

• Begin in a general basic training program, then progress to sub-specialisation

• A variety of trainee levels care for newborns

• Some trainees get more training opportunities than others

• Less procedures than in past?

• Simulation isn’t the real thing

• Care of newborns take place in a variety of settings

• Tertiary hospitals – more consultants and support, but less opportunities to take responsibility

• Secondary hospitals – more opportunities, but less support and supervision

Who would you want?

“Most people would say … given the choice between an experienced consultant surgeon and a registrar … they would choose the experienced consultant”

Brus v ACT [2007] ACTSC 83

But how would anyone learn, and the profession still provide health care?

So why does all this matter?

• The trainee experience when things go wrong

• How are they judged?

• Civil claims

• Regulatory / disciplinary matters

• Coronial matters

• Hospital reviews

Neonatal / Paediatric trainee expectations

What do we expect of trainees?Practice principles

Medical Board of Australia – Good Medical Practice• 1.1 – Purpose - describes expectations of all doctors

in Australia• 2.2 – Patient care

– Recognise and work within limits of competence and scope of practice

– Ensure adequate knowledge and skills to provide safe clinical care

• 4.4 – Teamwork - understand your role and meet responsibilities as part of the team

What do we expect of trainees?Practice principles

Medical Board of Australia – Good Medical Practice• 7.2 – CPD

– meet CPD requirements– ensure practice meets standards reasonably

expected by the public and peers (is this as clear as it seems?)

• 3.6 – Children – putting interests and wellbeing of the child first

What do we expect of trainees?RACP clinical standards

• Basic and advanced training in paediatrics

• Eligibility, education and assessment

• A six year full-time program

• Skills and experience take time!

What do we expect of trainees?RACP basic trainees

• 3 years full-time program

• minimum 3 months NICU, maximum 12 months

• level 3 hospitals (tertiary paediatrics) – 3 NSW, 2 Vic, 1 each SA, QLD and WA

• up to 27 months at level 2 hospitals (mini tertiary), and up to 12 months at secondment hospitals (paediatric facilities)

• different levels of trainee in different settings

What do we expect of trainees?RACP advanced trainees

• Neonatal advanced trainees– skills - perform basic newborn resuscitation and advanced

airway support (including endotracheal intubation)

– counsel parents of newborn not responding to resuscitation

– manage end of life care, including withdrawal of life support

• You won’t always get a neonatal trainee…

• General paediatric advanced trainees– manage neonatal acute care, including procedures

Civil law – trainee expectations

Trainee common law standards of care• What precautions against a foreseeable, not

insignificant risks of harm should be taken by reasonable person in practitioner’s position?

• Defence – not negligent if acted in a way widely accepted by ‘peer professional opinion’ as competent practice

• Peers – trainees? Profession generally?

Civil law - UK trainee standardWilsher v Essex Area Health Authority [1987] QB 730

• Trainee placed catheter in baby’s vein instead of artery - inaccurate oxygen monitoring, excess oxygen given - near blindness

• Rejected ideas of team standard (too high) and individual standard (trial finding, too low)

• “…the law requires the trainee or learner to be judged by the same standard as his more experienced colleagues. If it did not, inexperienced would frequently be urged as a defence”

• “…standard is not just of the averagely competent and well-informed [doctor in that position] but of such a person who fills a post in a unit offering a highly specialised service”

Wilsher implications

• Some trainees will meet the standard, others not

• Placement is key

• Trainees not employed, so not sued directly, so what?

• But – involved in the case, give evidence and their standard of conduct is assessed

Wilsher in Australia?

• Rogers v Whitaker– ordinary skilled person exercising and professing to have that

special skill – Wilsher fits?

• Brus:– duty to provide patients with “suitably qualified staff”– hospital negligent in permitting surgical registrar to perform

procedure beyond capacity, particularly with past adverse assessments

Wilsher to be followed?

• Le Brun v Joseph (No 2) [2010] WASCA 52

• ED registrar not referring for imaging with severe headache

• trial - inexperienced doctor not to be judged by the same standard as an experienced doctor

• CoA - based on earlier authority - ? effect of Imbree v McNeilly (2008) 236 CLR 510 (not variable standards of care for learner drivers) – not argued, left for another time…

Wilsher not followed

• Scout Association of Australia v Central Regional Health Authority [1997] QCA 352

• Assessing knee injury in ED

• Standard expected - reasonably competent ED resident

The Regulator

National Law• Unsatisfactory professional performance “…knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the health profession in which the practitioner is registered is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience”

• Unprofessional conduct “…professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers…”

If breached…

• Less serious cases:– NSW – Medical Council performance program – counselling

interview, performance assessment, performance review panels

– Elsewhere – AHPRA investigation, if concerns usually proposed caution, and imposition of conditions

– Why the incongruity?

• More serious cases – disciplinary proceedings:– Panels / committees – caution / reprimand, impose conditions,

sometimes can fine

– Tribunal – same powers, but also suspension and de-registration powers

F, FGH, CDE [2006] MPBV 15, 16 & 17

• Disciplinary proceedings against two paediatric residents, and a paediatric registrar - 7 day hearing

• Incorrect fluid order for 4 week old by second year resident – caused brain damage – unprofessional conduct – “so blatant an error, and so glaringly below proper professional standards” - resident reprimanded and counselled

• Other resident and registrar – not criticised for not picking up incorrect order

• Expert – “one of those areas that we would consider to be something that students should master before they are ready to graduate”

F, FGH, CDE [2006] MPBV 15, 16 & 17

• Consultant and registrar mentioned 50% dextrose in presence of resident, unsure final agreed order, but had it in mind as an order

• Board concerns:– knew 50% dextrose for use in particular acute situations– thought its use was unusual– uncertainty about consultant’s order– could have checked

• “Those in their junior years should ensure that they are carefully carrying out instructions from a senior colleague and that they understand what the instructions are and why they are given”

And don’t forget

• Coronial investigations / inquests

• Hospital reviews – RCA etc

• What standards applied?

One night in a suburban hospital

Introducing Lucy

• First year advanced general paediatric trainee

• 6 months neonatology training as basic trainee at tertiary hospital

• Never undertaken more serious procedures ieintubation or umbilical lines – specialists or fellows did these – simulation training only

Lucy’s hospital

• Outer suburban hospitals

• Two paediatricians, one on call

• Resident for support

• Low and ‘medium’ risk births

Lucy’s night

• Called to attend emergency caesarean delivery

• Pathological foetal CTG in half an hour before birth

• Baby comes out ‘flat’, with thick meconium in airway

Lucy’s resuscitation

• Neopuff unsuccessful, intubation required

• Lucy needs two passes to achieve intubation

• Some delay in achieving proper airway

In the special care nursery

• Baby fails to improve and develops other problems – seizures, depressed consciousness, hypotonia

• Several days later - brain imaging suggests significant hypoxic injury

• Unable to get baby off respirator

End of life care discussions

• Initial discussions between consultant, Lucy and parents

• Follow-up discussions between parents and Lucy

• Parents choose palliative care

• Baby passes away

• ? Death preventable - reported to Coroner

Coronial inquest

• Parents complain Lucy too forceful in advising on treatment options, steering them to palliative measures

• Coroner:– Critical of resuscitation efforts– ? Transfer to tertiary centre– Lucy’s communication inappropriate – lacked the

necessary skills– Recommended hospital have protocol for calling in

consultants / anaethetists where intubation may be required, and for registrars to undergo training in counselling about of end of life care options

Disciplinary proceedings

• Parents complain about Lucy’s resuscitation and communication to AHPRA

• Matter investigated – concerns about skills, potential for umbilical line use, counselling

• AHPRA – propose to caution, and conditions including to undergo resuscitation course, and training in counselling parents about end of life care options

• Lucy accepts caution and conditions - caution not public, but conditions are

Civil claim

• Parents sue hospital for nervous shock

• Allege Lucy’s resuscitation efforts were below reasonable standards, causing baby’s injuries and their psychiatric injury

• Court – resuscitation fell below standard expected of first year advanced trainee – should have called anaesthetic registrar or paediatrician

• The right outcome?

A better way?(without more resources or ‘lowering standards’)

The response – medico-legal education

• Teaching trainees what is required in different hospital settings

• Education on ‘soft skills’ – communication, questioning, challenging

The response - hospitals

• Considering whether trainee placements are suitable, based on skills and learning so far

• Focusing training on dealing with where trainees are at, based on what the hospital offers, not just their general educational needs

• Not one-off procedures, but systematic, supervised instruction – gradually becoming more competent

• Creating a culture of openness in treating teams

The response – civil claims

• Will Wilsher be followed?

• The importance of compensation – a different standard to disciplinary justified?

• Do hospitals need to carefully consider the situations they are putting their trainees in?

The response - disciplinary

• National Law – moving away from cautions for unsatisfactory professional performance to performance management / education, in association with college

• Close examination of College requirements and progress, particularly at early stages

• Experts – need to have skills in training to recognise what is required at various stages – goes beyond reviewing the curriculum

The response - investigations

• Consider whether putting the trainee through unnecessary processes

• RCA enough?

• Coronial comments sufficient?

• Inquest unnecessary?

Questions (for the lawyer)?