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Director of Proceedings v Stubbs - Surgeon
Health Practitioners
Disciplinary Tribunal, Med09/113D
In December 2009 the Health Practitioners Disciplinary Tribunal
issued an important decision on informed consent particularly in
terms of the obligations and duties of a surgeon when undertaking
non-urgent elective surgery.
Dr Stubbs, a bariatric surgeon based at Wakefield Hospital in
Wellington, proceeded with elective gastric by-pass surgery despite
knowing that the risks of death and of post-operative
complications were significantly greater than those he had
disclosed to his patient.
The day before the gastric by-pass surgery was to proceed, liver
function tests (LFTs) were taken. However, Dr Stubbs did not review
these until after the patient was anaesthetised. The LFTs showed
significant liver cirrhosis and therefore increased the risk of
death from the one percent that the patient had been informed about
to somewhere in the vicinity of 15 to 22 percent. Rather than wake
his patient to discuss this and the various options that were
available to the patient, Dr Stubbs continued with surgery. Sadly,
the patient developed post-operative complications and died some
three weeks later.
Extensive expert evidence was given at the hearing about the
risks in proceeding, the options available and the ethical duties
and obligations of a surgeon in this position.
The Tribunal confirmed that the significantly greater risk of
death was material information and that the patient should have had
the opportunity to reconsider whether he still wished to proceed
with the operation. The Tribunal rejected Dr Stubbs' argument that
by proceeding with the operation he was acting in his patient's
best interests, noting that it was not Dr Stubbs' decision whether
or not to proceed but that of his patient. They also rejected Dr
Stubbs' argument that he faced a clinical dilemma, stating that any
so-called dilemma was entirely of his own making as it was a result
of a succession of failures by him to make adequate enquiries
before he arrived at the hospital to perform the operation.
The Tribunal considered it was pure conjecture to say what the
patient might have chosen had he been given the choice prior to the
operation. Further, the Tribunal rejected the submission that
the surgeon knew the patient sufficiently well to make a decision
to proceed with the surgery without first informing him of the
increased risks and other options open to him. The
Tribunal also rejected the submission that the situation
could be remedied by a post-surgery conversation which Dr Stubbs
said he had had with the patient in which he asserted the patient
had retrospectively given approval for what had occurred.
The Tribunal reconfirmed that informed consent necessarily
involves consideration of material issues. The Tribunal held it was
incumbent on Dr Stubbs to allow his patient to wake from the
anesthetic and inform him of the new information and the risks that
were involved and of the options available to him. The Tribunal
considered Dr Stubbs' conduct was a serious departure from, and
fell seriously below, those standards which are considered to be
acceptable and appropriate by competent, ethical and responsible
medical practitioners. His actions amounted to malpractice and to
professional misconduct.
Dr Stubbs was also found to have failed to ensure that adequate
medical notes were made and that an appropriate discharge letter
was sent and this fell below the standards of what would be
considered acceptable and appropriate by his peers.
In imposing a penalty on Dr Stubbs the Tribunal accepted that he
lacked insight into informed consent and patient autonomy. The
Tribunal declined to grant Dr Stubbs name suppression and imposed
the following penalties:
- A number of conditions on his practice including a mentoring
programme (to run for a minimum of 18 months, maximum of 3 years)
and a practice audit, at Dr Stubbs' cost;
- Censure;
- A fine of $20,000; and
- Dr Stubbs to pay 50% of Director of Proceedings and
Tribunal costs.
The Tribunal's full decision is available at http://www.hpdt.org.nz/Default.aspx?tabid=230