On 15 February 2008 Dr Jocelyn Benedicto, having recently arrived in Australia from the Philippines, started work as a junior doctor at the Bacchus Marsh Hospital at the Djerriwarrh Health Service (the Hospital) in Victoria. Her role, Career Medical Officer, was a training position. As an international medical graduate she was granted limited registration as a medical practitioner and was required to practice under supervision. This marked the beginning of Dr Benedicto’s involvement in a series of perinatal deaths and adverse patient outcomes, in the context of what would subsequently be described as 'catastrophic and unprecedented systemic governance failings'.2
This article was originally published in the Lexis Nexis Health Law Bulletin Volume 30 No 3.
Introduction
Events at the Hospital between 2008 and 2015 prompted investigation by the Australian Health Practitioners Regulation Authority (AHPRA) and the National Boards of 101 matters involving 43 practitioners, with 10 practitioners referred for panel hearings or to the Victorian Civil and Administrative Tribunal (the Tribunal).3 In 2015, following reports of a cluster of neonatal deaths and stillbirths, the Victorian Department of Health and Human Services (the Department) commissioned a review of the safety of the maternity service at the Hospital by senior obstetrician, Professor Euan Wallace. Professor Wallace prepared a report4 (the Wallace Report) which concluded, amongst other things, that 7 of the 10 perinatal deaths reviewed were avoidable.
The Department went on to initiate a broader review into hospital safety and quality assurance in Victoria, chaired by Professor Stephen Duckett. The resulting report, 'Targeting zero: Supporting the Victorian hospital system to eliminate avoidable harm and strengthen quality of care'5 (the Duckett report), ran for over 300 pages and made a series of recommendations, all of which were accepted in principle by the Department.6 This review and the Duckett Report gave rise to a series of reforms, including the establishment of Safer Care Victoria to oversee quality and safety in the Victorian healthcare system.7
For Dr Benedicto, these events culminated in a referral by the Medical Board to the Tribunal which was heard in November 2021. The Tribunal’s orders and reasons were published on 2 February 2022.8
This article examines the Tribunal decision, and considers the implications for both the medical profession and health services.
The Tribunal proceeding
In June 2018, the Medical Board referred Dr Benedicto to the Tribunal, alleging professional misconduct in relation to her obstetric management at the Hospital between 2008 and 2015. A total of 16 allegations were made, relating to 8 patients. All of these allegations were ultimately admitted by Dr Benedicto.9
The majority of the issues before the Tribunal were the subject of agreement between the parties. The Board submitted, and Dr Benedicto agreed, that 5 of the allegations constituted the more serious finding of professional misconduct,10 and 11 involved unprofessional conduct. The parties also agreed that a reprimand was an appropriate sanction.
The primary matter in contention was the question of suspension.11 The Board submitted that a three month period of suspension should apply, for reasons primarily of general deterrence.
This was contested by Dr Benedicto, who, at the time of the hearing, continued to work at the Hospital as one of only two resident medical officers. She produced evidence to the effect that the maternity service at the Hospital was understaffed, seriously stretched and subject to 'extreme pressures' caused by the COVID-19 pandemic.12 Dr Benedicto submitted that if she were suspended, the maternity service at the Hospital would become unsafe, and may have to close, seriously affecting continuity of care for current patients.13
The Tribunal noted that its role of protection of the public requires it at times to weigh competing priorities. In this instance, the need to send a clear message to the profession by way of general deterrence had to be weighed against the potential to negatively impact the care and safety of maternity patients at the Hospital.14
Background and agreed facts
Upon commencing work at the Hospital, Dr Benedicto was assigned to work under the supervision of the Director of Obstetrics at the Hospital, Dr Surinder Parhar, a senior practitioner with over 30 years’ experience.
However, in practice, she was often required to work unsupervised and was frequently on call on her own. The Tribunal noted pressures on the maternity service at the Hospital during the relevant period due to rapidly increasing population in the area combined with staff shortages.15 Dr Parhar’s own professional conduct was the subject of an earlier Tribunal decision16 in which the Tribunal made findings about the 'serious failures in his supervision, assessment, and support of junior doctors'.17
Dr Benedicto did not recall receiving any formal induction when she started work. She completed the RANZCOG Foetal Surveillance Education Program (FSEP) in April 2008, returning a slightly below average score. While the FSEP results noted the score should be considered in conjunction with a practitioner’s clinical skills and experience, there was no mandatory competency level at the Hospital in relation to foetal surveillance.18
To the extent that formal evaluations and performance assessments were conducted at the Hospital, they did not raise any concerns in relation to Dr Benedicto’s professional performance, including regarding her competency in cardiotocography (CTG) interpretation. Nor were any issues raised informally with Dr Benedicto by any member of staff at the Hospital, including Dr Parhar, regarding her competency in CTG interpretation.19
Dr Benedicto’s employment contract was extended on multiple occasions between 2008 and 2015. On each occasion the Medical Credentialling and Scope of Practice Committee at the Hospital approved Dr Benedicto’s re-credentialling in obstetrics.20
In short, the Tribunal accepted that at no time was Dr Benedicto informed by her supervisor or the Hospital of concerns, or the potential for concerns, about her competence or performance. She was also never 'informally advised or counselled about such concerns', nor were there any recommendations made for her to engage in further professional training.21
The allegations before the Tribunal were the subject of a detailed list of Agreed Facts.22 The list outlined a number of deficiencies in Dr Benedicto’s obstetric care of the 8 subject patients, with the key issues including:
- deficiencies in cardiotocography (CTG) interpretation,
- failing to arrange an emergency caesarean section before attempting a forceps delivery,
- applying traction with forceps an unacceptable number of times,
- failing to work within the limits of her competence or supervision,
- failing to develop a suitable management and/or treatment plan for placental abruption, and
- repeated record-keeping deficiencies in relation to failing to keep a clear and accurate patient record.
The Agreed Facts also included acknowledgements by Dr Benedicto of multiple breaches of the Medical Practitioners Board of Victoria Guidelines and Medical Board of Australia Code of Conduct.
At the time of the hearing, Dr Benedicto remained employed at the Hospital, as one of two resident medical officers in the maternity service. She was one of the few remaining practitioners that had been involved in the maternity service during the relevant period, and the only full-time medical practitioner employed at the service.23 Dr Benedicto produced evidence from colleagues of the high regard in which she is now held, having taken steps to update her skills and having practiced safely and competently in the period since 2015.24
Reports, reforms and expert evidence
The Tribunal referred to the findings of the Wallace and Duckett Reports, noting that they identified a number of significant governance failings at the Hospital. These included failures to ensure proper evaluation of cases and assessments of professional competency, as well as deficiencies in the identification and investigation of performance issues. These deficiencies were found to have resulted in failures to implement appropriate outcomes such as scope of practice limitations and training.25
The Tribunal noted in particular that the Wallace Report identified recurrent issues with misinterpretation of CTG results at the Hospital, which was suggested to reflect a workforce that was inadequately skilled in foetal surveillance.26 It acknowledged the 'radical reform' which followed the Wallace and Duckett Reports, noting that the Hospital is now 'rigorously oversighted and audited'.27
The Medical Board had obtained expert evidence from Associate Professor Edward Weaver OAM, Obstetrician and Gynaecologist,28 regarding the performance of Dr Parhar. The Tribunal had regard to Professor Weaver’s conclusion that Dr Parhar’s approach to supervising junior doctors, especially overseas trained doctors, was unsatisfactory noting there was little to no evidence:
- that Dr Parhar monitored or assessed the performance of the practitioners,
- of any systematic appraisal or assessment of the practitioners, and no sign off on any competency of clinical privilege,
- of any systematic approach to assessment, or sign off process, to determine if the practitioners were sufficiently skilled to work on call,
- that Dr Parhar discussed with the practitioners when they should or must contact a Consultant,
- that Dr Parhar verified the practitioners’ credentials or articulated what their clinical privileges were,
- of appropriate debriefing and support by Dr Parhar of junior practitioners and
- of clinical leadership by Dr Parhar in ensuring adequate records were kept.29
The Tribunal also noted Professor Weaver’s observations regarding the context at the Hospital including:
- the lack of policies or procedures relevant to the capabilities of the service and the management and transfer of patients who fell outside those capabilities,30 and
- a systemic problem in the use of interpretation of CTG traces as part of foetal assessment antenatally and intrapartum. Professor Weaver said that the junior practitioners should have had their interpretations of CTG traces scrutinised by a more experienced practitioner to ensure they were adequately skilled.31
Regarding Dr Benedicto’s own performance during the relevant period, Professor Weaver considered this to be well below the standard of a practitioner of equivalent education and training. He noted repeated examples of poor or absent documentation, poor clinical judgment, lack of clinical skill and failures to escalate concerns or to notify her supervisor of issues.32
Issues
In considering its determination on suspension, the Tribunal had particular regard to the question of mitigating factors, as well as to the competing concerns of general deterrence and a potential risk to patient safety.33
Mitigating factors
The Tribunal noted that there were several mitigating factors in this matter, including that:
- Dr Parhar’s supervision of Dr Benedicto was 'undoubtedly inadequate' and she was working in an environment where those in a leadership position failed to ensure that adverse events including stillbirths were properly reviewed.
- The last allegation relating to the conduct happened in 2015 with no further incidents reported.
- Dr Benedicto had since carried out extensive education/training and improved her skills. Evidence from her current supervisors supported that she now practices safely and competently.
- Dr Benedicto cooperated fully and displayed insight by admitting the Board’s allegations and had insight into her own personal responsibility for the failures in both her clinical care and inadequate documentation.34
However, the Tribunal did not accept — and in fact described as concerning — a submission on behalf of Dr Benedicto that she was 'understandably oblivious' to her performance issues given the continued endorsement of her performance by her supervisor and the Hospital more generally.35 The Tribunal said that this submission overlooked the fact that there were adverse events, including four stillbirths, that ought to have prompted some self-reflection about deficiencies in her own practice.36
The Tribunal reiterated its previous comment that:
Ultimately, the Tribunal considered that the lack of supervision and the normalisation of poor practices at the Hospital did not absolve Dr Benedicto from her responsibility to ensure her own practice was safe and consistent with professional standards.38
General deterrence
The Tribunal acknowledged the importance of general deterrence in this matter, noting the need to send a 'strong message' to the profession given the nature and gravity of the conduct. It noted that failing to provide clinically appropriate obstetric care and failing to make 'appropriately comprehensive, clear and accurate records of obstetric management' can potentially endanger two lives — the mother and the baby, especially in the event of another practitioner providing continuity of care, including in emergencies.39
The Tribunal considered imposing a suspension, not on the grounds that Dr Benedicto was currently an incompetent or unsafe practitioner, but in the interests of protecting the reputation of and confidence in the profession generally, and maternity services in particular.40
Potential risk to patients
Countering the general deterrence argument was the evidence of the impact that a suspension of Dr Benedicto’s registration would have on the current operations of the maternity service at the Hospital.
The Tribunal acknowledged the potential for a suspension to compromise patient safety at the Hospital and to impact the well-being of maternity patients already under stress due to the impacts of COVID-19.41 It described the case as one where it was required to balance competing interests in its role of making appropriate determinations to protect the public.42
The decision
Dr Benedicto was found to have engaged in professional misconduct and unprofessional conduct. She was formally reprimanded under s 196 of the Health Practitioner Regulation National Law 2009 (Victoria).
The Tribunal accepted the characterisations agreed by the parties of 5 instances of professional misconduct, and 11 instances of unprofessional conduct. It also determined43 that 7 of the 11 instances of unprofessional conduct, primarily relating to inadequate documentation, when considered together, constituted professional misconduct.44
On the question of suspension, the Tribunal ultimately, and with some reluctance, declined to impose the suspension. It noted 'as a matter of concern' that the safety and continuity of the maternity service at the Hospital is dependent on a still relatively junior practitioner whose conduct is the subject of allegations of professional misconduct.45
To underscore its displeasure the Tribunal repeated the following comment in both its preliminary and concluding remarks:
Implications
In terms of the professional regulation of medical practitioners, several conclusions might readily be drawn from this decision.
Even the most junior medical practitioners bear personal responsibility for ensuring that they practice safely and competently. Failures in supervision and a problematic work environment are no excuse. Regarding sanctions, general deterrence is important but does not trump the protection of the public from actual risks to safety in healthcare. Insight, cooperation and the taking of positive steps to improve performance remain relevant as mitigating factors.
The decision also has relevance to hospitals and other health facilities. While the Tribunal’s jurisdiction is confined to the registration of an individual medical practitioner, the circumstances of this case highlight the downstream impacts of failures in governance and culture at a health service.
A hospital needs systems to regularly monitor the competence of its staff. Supervision and accurate feedback are important in identifying gaps in skills and competence. Incidents and adverse outcomes, especially perinatal deaths, should be appropriately reviewed, with recommendations made and implemented. Clear admission and transfer criteria are needed to ensure patients are not admitted if their needs exceed the capacity or capability of the hospital.
Yet more broadly, the impacts of the Duckett Report continue as Safer Care Victoria enters its sixth year of working to 'target zero' patient harm. Of relevance to the present discussion, Safer Care Victoria recently reported that the number of stillbirths at health services participating in its Safer Baby Collaborative fell by 24%, or 20 lives, in 2020 to 2021.47
As 2022 unfolds, the year ahead may see the families at the centre of the events at the Hospital mourning the eighth and ninth birthdays that won’t be celebrated. Meanwhile the latest in the series of resulting Tribunal decisions reminds us that the impacts of the tiny lives lost continue to be felt, both across the Victorian healthcare system and within the broader medical profession.
1 Medical Board of Australia v Benedicto (Review and Regulation)
[2022] VCAT 117; BC202203347, at [3].
2 E Wallace 'Report of an Investigation into Perinatal Outcomes at Djerriwarrh Health Services' (2015) Victoria.
3 Medical Board of Australia, 'Tribunal reprimands medical practitioner for obstetric care at Bacchus Marsh Hospital' 4 February 2022, accessed 4 April 2022, www.medicalboard.gov.au/News/2022-02-03-Tribunal-reprimands-medical-practitioner-for-obstetric-care.aspx.
4 Above n 2.
5 S Duckett, M Cuddihy, H Newnham, 'Targeting zero: supporting the Victorian hospital system to eliminate avoidable harm and strengthen quality of care, report of the review of hospital safety and quality assurance in Victoria', October 2016, accessed 4 April 2022 www.dhhs.vic.gov.au/sites/default/files/documents/201610/Hospital%20Safety%20and%20Quality%20Assurance%20in%20Victoria.pdf.
6 Department of Health and Human Services Victoria, 'Targeting zero, the review of hospital safety and quality assurance in Victoria', accessed 4 April 2022 www.dhhs.vic.gov.au/publications/targeting-zero-review-hospital-safety-and-quality-assurance-victoria.
7 Above n 6.
8 Above n 1.
9 Above n 1 at [29] Agreed Fact 4.1.
10 Being 'unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience', Health Practitioner Regulation National Law Act 2009 (Vic) s 5.
11 Above n 1 at [20] Agreed Facts 5.1 and 5.2.
12 Above n 1 at [8].
13 Above n 1 at [8].
14 Above n 1 at [11] and [12].
15 Above n 1 at [20].
16 Medical Board of Australia v Parhar [2021] VCAT 1295.
17 Above n 16 at [16] and pp 16–19.
18 Above n 1 at [29] Agreed Facts 1.17–1.18.
19 Above n 1 at [29] Agreed Facts 1.19–1.20.
20 Above n 1 at [29] Agreed Facts 1.14–1.15.
21 Above n 1 at [29] Agreed Fact 1.20.
22 Above n 1 at [29] Agreed Facts 2.1–2.94.
23 Above n 1 at [26].
24 Above n 1 at [27].
25 Above n 1 at [29] Agreed Fact 1.27.
26 Above n 1 at [29] Agreed Fact 1.28.
27 Above n 1 at [29] Agreed Fact 1.29.
28 Report of Associate Professor Edward Weaver OAM dated 20 September 2018, Above n 1, Agreed Fact 1.30.
29 Above n 1 at [29] Agreed Facts 1.30–1.32.
30 Above n 1 at [29] Agreed Fact 1.33.
31 Above n 1 at [29] Agreed Fact 1.34.
32 Above n 1 at [59]–[60].
33 Above n 1 at [30]–[42].
34 Above n 1 at [47]–[54].
35 Above n 1 at [53].
36 Above n 1 at [55].
37 Above n 1 at [57] referring to the related decision of Medical Board of Australia v Lines (Review and Regulation) [2021] VCAT 1394; BC202114879 at [59]–[60].
38 Above n 1 at [57].
39 Above n 1 at [64].
40 Above n 1 at [65] and [13].
41 Above n 1 at [12].
42 Above n 1 at [11].
43 This aspect was not admitted by Dr Benedicto, above n 1 at [29] Agreed Fact 4.3.
44 Above n 1, Finding 2.
45 Above n 1 at [9].
46 Above n 1 at [14] and repeated at [76].
47 Safer Care Victoria, Annual Report 2020-21, August 2021, accessed 4 April 2022 www.bettersafercare.vic.gov.au/sites/default/files/2021-09/SCV1502_FA_01_web.pdf.
