(Furness' separate report to the Medical Council is noted here; the NSWCAT judgment in Health Care Complaints Commission v Gayed [2018] NSWCATOD 165, is noted here.)
The Review of documentary material in relation to the appointment of Dr Gayed, management of complaints about Dr Gayed and compliance with conditions imposed on Dr Gayed by local health districts comments -
On 21 June 2018, the Secretary of NSW Health, Ms Elizabeth Koff, appointed me to conduct an independent inquiry to review documentary material provided by each local health district in relation to the appointment of Dr Gayed, management of complaints about Dr Gayed, and compliance with conditions imposed on Dr Gayed by relevant regulatory bodies, including the Medical Council of New South Wales (Medical Council), at Kempsey District Hospital, Cooma Hospital, Manning Hospital and Mona Vale Hospital. My terms of reference required me to review documentary material; however, with respect to Manning Hospital, I interviewed a number of people who held key positions at the relevant time. ...
On 29 June 2018, I was appointed by the Medical Council to undertake an independent review of processes undertaken pursuant to Part 8 of the Health Practitioner Regulation National Law (NSW) with respect to Dr Emil Gayed from the date of his registration as a medical practitioner in New South Wales until 7 March 2018.
The resulting report was titled Review of processes undertaken by the Medical Council of New South Wales pursuant to Part 8 of the Health Practitioner Regulation National Law (NSW) with respect to Dr Emil Gayed and dated 31 October 2018. The report has been published on the Medical Council website. ...
The report from each of these inquiries should be read together. The reader cannot understand the actions of each local health district without appreciating the information held and actions taken by the Medical Board and the Medical Council.The report goes on
Registration
8. On 17 May 1994, Dr Gayed was registered as obstetrician and gynaecologist to practice in positions approved by Medical Board.
Grafton
9. In 1994, Dr Gayed commenced work at Grafton Hospital, Clarence District Health Service, and completed his last procedure in June 1995.
10. Based on the documents available to the inquiry, the Clarence District Health Service appropriately appointed Dr Gayed, including delineating his clinical privileges. No relevant conditions were imposed by the district health service on his appointment, his clinical privileges were not varied or withdrawn and his clinical privileges were consistent with his registration. There were no complaints made to the district health service.
Cooma Hospital
11. Dr Gayed was appointed to Cooma Hospital in February 1996. Between April 1997 and July 1998, staff at Cooma Hospital, primarily nurses, completed incident reports recording 15 events concerning Dr Gayed’s clinical treatment and his conduct in the operating theatre.
12. Five of the incidents involved needlestick injuries.
13. By the fourth incident, concern was being expressed about Dr Gayed’s eyesight. In relation to the seventh incident, on 11 November 1997, a nurse wrote a memo to the Health Service Manager stating that staff were expressing concern for patients under their care. She referred to Dr Gayed’s complication rate and his haste and possible poor eyesight.
14. A review of Dr Gayed’s eyesight was suggested; however, no review was undertaken.
15. On 29 July 1998, Dr Gayed was temporarily suspended from Cooma Health Service on the basis of concerns raised by Visiting Medical Officers and other staff about aspects of his clinical practice, as set out in the 15 incidents.
16. Following legal advice, Dr Gayed’s suspension was withdrawn.
17. On 8 October 1998, Mr Gleeson, as Chief Executive Officer (CEO) of the Southern Area Health Service, complained to the Health Care Complaints Commission (HCCC) about Dr Gayed’s conduct.
18. Mr Gleeson advised that, as a result of growing general concern, the Southern Area Health Service suspended Dr Gayed’s appointment and that:
At the same time, several general practitioner Visiting Medical Officers at Cooma who provide anaesthetics to Dr Gayed when he operated there, each took a personal decision to withdraw their anaesthetic services for a time
19. Dr Gayed resigned from Cooma Hospital in February 1999.
20. In my view, it was appropriate for the area health service to make the complaint it did to the Health Care Complaints Commission in October 1998. As Dr Jenkins states, it takes an accumulation of incidents over a period of time to come to such a conclusion. However, both Dr Jenkins and I consider that Cooma Hospital or the Southern Area Health Service should have restricted Dr Gayed’s clinical privileges pending the outcome of the investigation.
21. Based on the documents available to the inquiry, the Monaro District Health Service (which at that time was responsible for Cooma Hospital) appropriately appointed Dr Gayed, including delineating his clinical privileges, which were consistent with his registration. No relevant conditions were imposed by the district health service.
22. There was no requirement under the Health Services Act, as in force in 1998, for the Southern Area Health Service to report the complaint against Dr Gayed or his underlying conduct to the Medical Board. Professional Standards Committee
23. Between October 1998 and 2001, the HCCC investigated the complaints forwarded by the Southern Area Health Service as well as complaints directly made to the HCCC. On 15 March 2001, the HCCC made 10 complaints, concerning nine patients, to a Professional Standards Committee about Dr Gayed’s clinical work as an obstetrician and gynaecologist between July 1996 and July 1998 at Cooma Hospital. It also made one complaint that Dr Gayed suffered from an impairment—namely, high myopia.
24. The Professional Standards Committee found that, over the period of 15 months in 1997 and 1998, a number of incidents and complications had occurred involving Dr Gayed’s gynaecological practice leading to a gradual loss of confidence in Dr Gayed by his general practitioner (GP) colleagues and his nursing colleagues.
25. The Professional Standards Committee found that Dr Gayed suffered from an impairment—high myopia—which detrimentally affected or was likely to detrimentally affect his physical capacity to practise medicine.
26. In relation to the other 10 complaints, it found Dr Gayed guilty of unsatisfactory professional conduct in half of those complaints and not guilty in the remaining five complaints.
27. Overall, the Professional Standards Committee found Dr Gayed guilty of unsatisfactory professional conduct. It:
- reprimanded Dr Gayed;
- ordered that his registration be subject to the condition that he not undertake microsurgery;
- ordered that he be assessed by an ophthalmologist approved by the Medical Board at intervals determined by the ophthalmologist and reports forwarded to the Medical Board with the first assessment to take place before the end of December 2001;
- recommended to the Medical Board that a performance assessment in accordance with Part 5 of the Act be undertaken in respect of his practice at Manning Base Hospital at a time deemed appropriate by the Board;
- ordered that a full copy of the decision be provided to: o the Medical Board; o the HCCC; o Dr Gayed and his adviser; o the peer reviewers; o the Chief Executive Officer, Southern Area Health Service; and
- ordered that a de-identified copy of the decision be forwarded to Royal Australian and New Zealand College of Obstetricians and Gynaecologists for the purposes of educational training.
28. Dr Gayed provided services at Kempsey District Hospital from October 1999 until June 2002.
29. Following the Professional Standards Committee decision in October 2001, the Medical Board notified the Mid North Coast Area Health Service of the condition imposed that Dr Gayed not undertake microsurgery.
30. However, the Medical Board did not notify Mid North Coast Area Health Service of the Professional Standards Committee’s finding of unsatisfactory professional conduct, the reprimand or orders or recommendations made.
31. Based on the documents available to the inquiry, the Mid North Coast Area Health Service appropriately appointed Dr Gayed, including delineating his clinical privileges. No relevant conditions were imposed by the area health service.
32. However, his privileges were not varied to reflect the condition imposed by the Professional Standards Committee in October 2001. They should have been. 33. There were no complaints made to the area health service.
Mona Vale Hospital
34. Dr Gayed was first appointed as a Visiting Medical Officer to Mona Vale Hospital in May 2002 with clinical privileges consistent with the usual practice of obstetrics and gynaecology.
35. Dr Gayed held a temporary appointment at Mona Vale Hospital between 10 May and 10 June 2002 and a five-year appointment commencing 1 July 2002.
36. Northern Sydney Health suspended Dr Gayed between 11 August 2003 and 30 September 2003. Dr Gayed resigned from his appointment on 7 March 2007 after being informed on 6 March 2007 by the Director of Medical Services that his appointment was suspended.
37. I have reviewed the policies applying in Northern Sydney Health at the time of Dr Gayed’s appointment and the available documentation relating to his appointment. I am satisfied that, prior to appointing Dr Gayed, Mona Vale Hospital did not check Dr Gayed’s registration status with the Medical Board. There is no evidence that the hospital sought from Dr Gayed information as to his conditions of registration or his consent to contact the Medical Board and/or the HCCC. The inquiry has been informed that, prior to Dr Gayed’s temporary appointment at Mona Vale Hospital, the Director of Medical Services obtained a positive verbal reference from Dr Jim Wills, Director of Medical Services at Manning Hospital.
38. I conclude that Dr Gayed was selective in the information he provided to Northern Sydney Health when he sought appointment. Specifically, he made no mention of the HCCC investigation or the Professional Standards Committee and its outcome in his curriculum vitae or any of the supporting material he provided.
39. As a result, the clinical privileges granted to Dr Gayed by Northern Sydney Health did not reflect the conditions imposed on his registration in that there was no restriction on microsurgery. The inquiry has been informed that Mona Vale Hospital had no microsurgical capability at that time. Accepting that this was the case and that the condition not to do microsurgery was therefore of minor significance, I consider it nevertheless concerning that his eyesight issues were not known to the hospital or area health service at the time of his appointment.
40. Northern Sydney Health first became aware of the conditions on Dr Gayed’s registration, the Professional Standards Committee and the conditions imposed and recommendations made by the Professional Standards Committee after concerns arose in relation to his management of patients in June 2003.
41. Complaints about Dr Gayed’s management of patients at Mona Vale Hospital were made to the hospital executive each year following his appointment in 2002. Incidents were notified by staff.
42. In June 2003, a number of cases involving Dr Gayed as consultant came to the attention of the Director of Medical Services, Dr Annette Pantle. Dr Pantle proposed reviewing the cases; however, pending that review, further clinical incidents occurred in relation to patients under the care of Dr Gayed.
43. On 12 August 2003, Dr Gayed was suspended pending investigation of his clinical performance.
44. Northern Sydney Health convened a Credentials Committee. Around this time, Mona Vale Hospital sought and obtained confirmation from the Medical Board as to Dr Gayed’s conditions of medical registration. However, there was no reference to the Professional Standards Committee, its orders, the reprimand or the recommendation it made that a performance assessment be undertaken. I am nevertheless satisfied that, by this time, Mona Vale Hospital was aware that Dr Gayed had been the subject of a Professional Standards Committee.
45. On 22 September 2003, the Credentials Committee met and noted a number of matters, including the following: (a) the cluster of cases was not comparable with any other doctors at Mona Vale Hospital; (b) there was a pattern of performing operative procedures on the same patients, at intervals, which could possibly be interpreted as overservicing; (c) the conditions placed on his registration by the Medical Board and Dr Gayed’s adherence to them; and (d) in respect of four of the patients, on balance, the clinical judgment demonstrated was within an acceptable range. The Credentials Committee noted potential suboptimal outcomes for the other three patients.
46. Notwithstanding concerns expressed by the Credentials Committee, it recommended: (a) the reinstatement of full clinical privileges; (b) that Dr Gayed’s appointment be reviewed in the event of any replication of similar concerns; and (c) notification to the Medical Board.
47. On 31 May 2004, nursing staff submitted an incident reporting form for a ‘Major Clinical Incident’ relating to a patient of Dr Gayed.
48. On 7 October 2004, that case was presented at a multidisciplinary peer review meeting. Dr Gayed was not present. The review concluded that a number of clinicians had correctly observed and documented features which were not consistent with the diagnosis being treated by Dr Gayed and, as such, it remained unclear why the surgery had been undertaken. It was recommended that a further case review meeting involving all the clinicians involved take place. The inquiry has not been provided with any documentation indicating that a further review of the case, as recommended by the multidisciplinary review, took place.
49. Dr Jenkins considers that there are a number of factors about that case which raise concerns about Dr Gayed’s clinical performance. Dr Jenkins and I consider that this case should have prompted a review of Dr Gayed’s clinical privileges in accordance with the outcome of the Medical Appointments and Credentials Advisory Committee meeting in September 2003.
50. In December 2005, concerns were again raised about a number of cases in which Dr Gayed was the treating doctor.
51. Northern Sydney Health did not reconsider Dr Gayed’s appointment or clinical privileges. Dr Jenkins and I consider that two of those cases seen in the context of the other cases, warranted a referral to the area health service Credentials Committee for review and consideration of whether Dr Gayed’s clinical privileges should be restricted. If the outcome of a review by the Credentials Committee had been adverse to Dr Gayed, it would have been incumbent on the area health service to report the cases to the Medical Board as involving suspected unsatisfactory professional conduct.
52. Northern Sydney Health did not formally notify the cases to the Medical Board, although the CEO contacted the Medical Board to seek information about Dr Gayed’s performance assessment. The Medical Board provided an extract of the report which indicated that the assessors considered his performance to be satisfactory.
53. The Director of Medical Services discussed Dr Gayed’s performance with the Director of Clinical Services at Manning Hospital. The assessment provided was in positive terms.
54. On 25 September 2006, staff registered another incident on the Incident Information Management System (IIMS) concerning Dr Gayed’s surgical management of a patient The Director of Medical Services decided to investigate the incident as a Level 2 ‘Complaint or concern about a clinician’ as outlined in the NSW Health Guideline GL2006_002. This required: (1) notification to the Director of Clinical Governance; (2) consideration as to whether variations to clinical privileges are required; and (3) an investigation. These steps were carried out. The Director of Medical Services engaged an independent obstetrician gynaecologist to conduct a review of the case.
55. On 4 December 2006, another incident was notified in IIMS. That case was also referred to external reviewer.
56. Both reviewers were critical of Dr Gayed’s treatment of the patients concerned.
57. One of the reviewers was also asked to provide an opinion with regard to de- identified data relating to surgery conducted between 1 September 2004 and 31 August 2006 by obstetrics and gynaecology specialists at Mona Vale Hospital. He advised that, of the four doctors concerned, Dr ‘B’, whose identity was not known to him, had a higher rate of general complication and difficult complications without an obviously different practice from the other doctors. I am satisfied that it is likely that Dr B was Dr Gayed.
58. In March 2007, two further cases of concern came to light. By this time, there were widespread concerns regarding the practice of Dr Gayed at Mona Vale Hospital and various investigations and reviews were underway.
59. On the evening of 6 March 2007, the Director of Medical Services met with Dr Gayed at Dr Gayed’s request. Dr Gayed felt the current and past reviews were personally motivated rather than being motivated by safety concerns. He presented his resignation.
60. On 16 March 2007 the Chief Executive of Northern Sydney Central Coast Area Health Service also notified the Medical Board of the cases of concern, of the decision to suspend Dr Gayed pending the outcome of investigations, and of Dr Gayed’s subsequent decision to resign. This was the second occasion during Dr Gayed’s appointment on which the Chief Executive had brought to the attention of the Medical Board the area health service’s serious concerns about Dr Gayed’s clinical practice.
61. During the period of his appointment, it is apparent that Northern Sydney Health, then Northern Sydney Central Coast Area Health Service, had effective and quite robust systems in place for notifying and managing complaints, particularly following the introduction of IIMS and related policies in 2005. They included notifying matters to the Medical Board and seeking information from the Medical Board.
Manning Hospital
62. Dr Gayed commenced working as a Visiting Medical Officer Obstetrician/Gynaecologist at Manning Hospital in August 1999. He sought reappointment in 2003, 2006 and 2011.
63. In each application Dr Gayed signed a release for enquiries to be made to, among others, previous places of employment, the HCCC and registration authorities.
64. There are no documents indicating that the area health service checked with Cooma Hospital, the Medical Board and/or the HCCC before reappointing Dr Gayed in 2003, 2006 and 2011. I conclude that those checks were not made. These are serious omissions. The policies requiring this information to be acquired as part of consideration of reappointing Visiting Medical Officers are significant elements of a system designed to identify concerns about practitioners who work across various private and public health facilities.
65. On each occasion the relevant area health service was informed by the Medical Board that conditions had been imposed on Dr Gayed’s registration, there were delays in reflecting those conditions in his clinical privileges. The most significant was in 2001, when some 16 months elapsed after the area health service was told that Dr Gayed’s registration was conditional on him not performing microsurgery.
66. In most years from 1999 to 2016 there was a complaint or concern raised about Dr Gayed’s clinical treatment of a patient. They were expressed by nursing staff, anaesthetists and other medical practitioners as well as, more recently, patients themselves.
67. Those concerns continued notwithstanding: (a) the findings of a Professional Standards Committee in 2001 and the conditions imposed on Dr Gayed’s practice; (b) the assessments by the Medical Board and Medical Council at various times over a decade and the imposition of further conditions on his registration; and (c) the effective termination of his contract at three hospitals: Cooma in 1999, Delmar in 2007 and Mona Vale in 2007.
68. Of most concern is that a repeated theme in the complaints and concerns was the unnecessary removal of organs, unnecessary or wrong procedures, perforations of organs and reluctance to transfer to tertiary facilities.
69. In June 2018, a public inquiry line was established at Manning Hospital. Almost 200 women who had a concern about their treatment by Dr Gayed contacted the hospital. Their treatment spanned the time of Dr Gayed’s appointment.
70. Dr Nigel Roberts, the Director of Obstetrics and Gynaecology at Manning Hospital, met with most of those women; reviewed their medical records, to the extent they were available; and wrote a report about their treatment and his opinion as to its adequacy.
71. Dr Gayed remained at Manning Hospital until early 2016, when he was suspended and then resigned.
72. By that time, at Manning Hospital alone, there had been 50 women whose treatment, according to advice by Dr Jenkins, which I accept, warrants a complaint to the HCCC and many more who had complained directly to the HCCC.
73. Most of these 50 women I have referred to the HCCC—that is, 30 in number—were treated between 2011 and 2015.
74. The health system failed each of these women.
What went wrong at Manning Hospital
75. First, Dr Gayed was a Visiting Medical Officer in obstetrics and gynaecology. He saw patients in his private rooms where he carried out assessments, examined patients and made diagnoses. He booked women in for surgery at Manning Hospital. They often returned to his private rooms and some were encouraged not to attend Manning Hospital after complications arose. His medical records were not available to the hospital, nor were any test results. It follows that the extent to which oversight could have occurred, if there was a view it should have, was limited.
76. I am concerned about a situation in which a public hospital provides facilities for a Visiting Medical Officer obstetrician gynaecologist to practise without the hospital having the capacity to ensure that those female patients are being cared for at the standard expected in a public hospital.
77. In my view, the public health system should have sufficient information about patients receiving procedures in its hospitals and using its ancillary staff to be satisfied that the procedures are being performed to an appropriate standard.
78. Secondly, mechanisms for oversight were not used. There was a requirement for regular performance reviews of Visiting Medical Officers. This did not occur with Dr Gayed.
79. There were no clinical supervision plans of him as required by policy.
80. Aggregate reviews of incidents recorded on IIMS were not completed or not documented.
81. The doctors did not record concerns on IIMS at all and the nurses did so selectively.
82. There was no evidence available to me that, before the arrival of Dr Roberts, there was any review of the IIMS undertaken to enable any pattern to be detected; or reviews followed up.
83. Thirdly, senior staff were not available to provide supervision and monitoring. There was no Director of Obstetrics and Gynaecology until April 2015. It is no coincidence that IIMS and other complaints escalated from mid-2015. An anaesthetist, Dr Bourke told me that there were discussions among colleagues and no reporting because ‘there was no-one to report to’.
84. The Director of Clinical Services was a Career Medical Officer Emergency Department doctor who responded to IIMS reports concerning Dr Gayed. I have documented the occasions on which Dr Wills was unduly favourable to Dr Gayed, did not follow policy and minimised the seriousness of concerns raised.
85. Fourthly, the hospital was reliant on Dr Gayed providing most of the obstetrician and gynaecologist services.
86. Local health districts need to identify these circumstances, particularly in regional, rural and remote areas, and ensure there is external oversight of the performance of medical practitioners providing such services.
87. Fifthly, the indicators in place, Morbidity and Mortality meetings and various ‘trigger’ events were not sufficiently sensitive or effectively monitored to detect Dr Gayed’s poor performance.
88. Sixthly, there was an attitude which prevailed that what occurred outside Manning Hospital with Dr Gayed was irrelevant to the experience of Manning Hospital. Hence:
(a) Following the report of the Professional Standards Committee in 2001, the Mid North Coast Area Health Service did not carry out a review of Dr Gayed’s clinical privileges or a risk assessment as to Dr Gayed’s continued appointment at the Hospital.
(b) The area health service / local health district did not make any enquiries of previous places of employment, the Medical Board / Medical Council or the HCCC when Dr Gayed reapplied for appointment as a Visiting Medical Officer in 2003, 2006, 2007 and 2011.
(c) The local health district did not carry out a review of Dr Gayed’s clinical privileges after it was notified by the Director of Clinical Governance at Northern Sydney and Central Coast Area Health Service of its effective suspension of Dr Gayed.
(d) After that notification, the local health district did not have Dr Gayed’s performance reviewed by one or more clinicians who were of the same speciality and did not have an appointment with or work as a staff specialist at Manning Hospital. Such a review would have avoided any conflict or bias towards a Visiting Medical Officer who carried a large burden of the roster of the hospital and was a colleague of many at Manning Hospital.
89. With the appropriate leadership, within both the hospital and the local health district, this attitude should not have prevailed.
90. Finally, staff relied too heavily on the Medical Board providing oversight and imposing conditions on or correction of Dr Gayed’s performance. They believed that, because Dr Gayed’s performance did not change after intervention by the Medical Board, his performance was satisfactory.
91. Staff became desensitised to his poor performance.
92. Dr Wills told me that he relied on the Medical Board / Medical Council to determine whether Dr Gayed was fit for practice and did not consider that to be his role. He said he made statements and gave evidence based on his experience of Dr Gayed alone.
93. Dr Wills was entitled to rely upon the Medical Board / Medical Council to carry out its regulatory functions. The Medical Board / Medical Council was the only body with overall knowledge of performance concerns of Dr Gayed from his public and private appointments and private practice. It assessed his performance from time to time and had the benefit of the views of those assessors.
94. However, the responsibility of the Medical Board / Medical Council did not relieve the hospital from properly reviewing Dr Gayed’s performance by a clinician with the same expertise, on a regular basis. That was not done.
95. Hunter New England Local Health District told me that there are now a number of mechanisms in place which should identify a practitioner with similar problems. I am told that some of these processes were in place during the time Dr Gayed was working at Manning Hospital.
96. I have not considered current practices and procedures at Manning Hospital in respect of the above matters.Furness' recommendations are
I recommend that governance processes of Hunter New England Local Health District be reviewed to ensure that IIMS reports are monitored at a local health district level to enable issues of patient safety relative to a particular clinician to be identified and to ensure that relevant staff have undertaken the reviews and investigations which the IIMS records as to be or having been undertaken.
I recommend that public hospitals which have arrangements with Visiting Medical Officers to undertake procedures on their private patients, using public facilities, should establish mechanisms to ensure access to sufficient information about those patients to be satisfied that the procedures are being performed to an appropriate standard.
99. The hospital was reliant on Dr Gayed providing most of the obstetrician and gynaecologist services. Local health districts need to identify these circumstances, particularly in regional, rural and remote areas, and ensure there is external oversight of the performance of medical practitioners providing such services.
