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Supreme Court of the ACT |
Last Updated: 24 October 2008
HUMAN RIGHTS ACT
S v THE DIRECTOR OF PUBLIC PROSECUTIONS and ORS
[2007] ACTSC 100 (21 December 2007)
SEPARATION OF POWERS – Whether appropriate for a Registrar of
the Magistrates Court to act as a Coroner – whether appropriate for ACT
Public
Servant to adjudicate mater if ACT is an interested party
CORONERS
REPORT – Quashing of comments – whether adverse comments were
supported by evidence – whether applicant given procedural
fairness
Human Rights Act 2004 (ACT), s 21(1)
Coroners Act 1997
(ACT), ss 13, 55, 93
R v Doogan [2005] ACTSC 74; (2005) 158 ACTR 1
Fingleton v Christian Ivanoff Pty
Ltd (1976) 14 SASR 530
Lyle v Christian Ivanoff Pty Ltd (1977) 16
SASR 476
R v Moss; ex parte Mancini (1982) 29 SASR 385
Jones v
Dunkel [1959] HCA 8; (1959) 101 CLR 298
Azzopardi v R [2001] HCA 25; (2001) 205 CLR
50
Weissensteiner v R [1993] HCA 65; (1993) 178 CLR 217
McGregor & Pearce v
The Hon John Gallop & The Attorney-General of the ACT [2002] ACTSC 45
(30 May 2002)
Mahon v Air New Zealand [1984] AC 808
APPLICATION FOR JUDICIAL REVIEW
No. SC 744 of 2006
Judge: Higgins CJ
Supreme Court of the ACT
Date: 21 December 2007
IN THE SUPREME COURT OF THE )
) No. SC 744 of
2006
AUSTRALIAN CAPITAL TERRITORY )
APPLICATION FOR JUDICIAL REVIEW
BETWEEN: S
The Applicant
AND: THE DIRECTOR OF PUBLIC PROSECUTIONS
First Respondent
AND: AUSTRALIAN CAPITAL TERRITORY
Second Respondent
ORDER
Judge: Higgins CJ
Date: 21 December 2007
Place: Canberra
THE COURT ORDERS THAT:
1. The following comments from the decision and findings of Deputy Coroner
Thompson, relating to the death of Norman Leslie Graham
Ritchie, dated 8
September 2006, be quashed:
(i) “That it did [S] no credit to state
that the reason he did not use a bougie was because he was not instructed to do
so by
Dr Leditshke” (“Adverse comment
3”);
(ii) “Further that the failure hindered Dr Leditshke in her
attempts to properly intubate Mr Ritchie and led to further delays
in restoring
an adequate air way to Mr Ritchie” (“Adverse comment
5”);
(iii) “Finally there was ample evidence that Mr Ritchie
wasn’t being properly bagged and ventilated during the numerous
intubation
attempts and that [S] failed to comply with Dr Leditshke’s instructions
to use the mask and to bag and ventilate
Mr Ritchie” (“Adverse
comment 6”); and
(iv) “Again I find that failure was another
factor in the overall failure to provide an adequate supply of oxygen to Mr
Ritchie
for some considerable period of time (“Adverse comment
7”).
1. This is an application, on behalf of the applicant, to review and, if
appropriate, to set aside certain findings and comments
made by Coroner Thompson
in relation to the inquest conducted by him into the death of Norman Leslie
Graham Ritchie. The name of
the applicant was suppressed from publication and
that order has, by consent, been extended. I will hear the parties as to
whether,
following this decision, that order should be discharged.
2. It
should be noted at the outset that it was completely inappropriate for Mr
Thompson ever to have undertaken this inquest. He
was, at that time, the
Registrar of the Magistrates Court, though holding a commission as Special
Magistrate and Coroner. It was
inappropriate because, in this inquest in
particular, one of the contending parties was and is the Australian Capital
Territory (the
second respondent) (“the Territory”). The Territory
was the Coroner’s employer in his capacity as Registrar.
Before the
decision and findings were published however, Mr Thompson had ceased to be
Registrar and had retired from the ACT Public
Service.
3. There is nothing,
it should be said, to indicate that Mr Thompson’s decision was in any way
influenced by this potential
conflict. Nevertheless, it was unwise for him to
have been put in that position, for the following reasons.
4. The Full Court
in R v Doogan [2005] ACTSC 74; (2005) 158 ACTR 1 (Doogan’s case) made it abundantly clear
that (at 5):
[10] It cannot be doubted that the principles of natural justice apply to coronial proceedings...
5. There will be a breach of those principles if:
... a suspicion may reasonably be engendered in the minds of those who come before the tribunal, or in the minds of the public that the tribunal ... may not bring to the resolution of the questions arising before the tribunal fair and unprejudiced minds.
6. There was, in the context of that case, a clear statement warning against the
blurring of the boundary between the judicial and
executive governmental
functions. A coroner, though conducting an administrative inquiry, is carrying
out a judicial function when
sitting as the Coroner’s
Court.
7. Reference was made in Doogan’s case to Fingleton v Christian
Ivanoff Pty Ltd (1976) 14 SASR 530; Lyle v Christian Ivanoff Pty Ltd (1977) 16
SASR 476; R v Moss; ex parte Mancini (1982) 29 SASR 385. In those cases, the
status of magistrates as civil servants, part of and employed by the Executive
Government was found to be inconsistent
with their role as judicial officers in
matters involving the Executive Government. That conflict could, as was the
case in R v
Moss (supra), be excused by statutory warrant but, in the case of
this Territory, such a provision would clearly offend s 21(1) of the Human
Rights Act 2004 (ACT).
8. The application for review in this case did not, as
it could have, place reliance on Mr Thompson’s ambiguous position
in
the circumstances of this particular inquest. As I have noted, fortuitously, Mr
Thompson retired as a civil servant before his
final report was
published.
9. The application by S, as amended, sought to quash certain
adverse comments made by Mr Thompson in that report concerning him.
10. The
grounds relied upon in the Amended Application were:
11. In an inquest there are, of course, no contending parties as such, though
interested parties may, of course, have competing interests.
In the present
case, S and the Territory had a similar interest, that is, in deflecting away
any criticism of the manner in which
the deceased had been treated in the
Canberra Hospital at Woden, a facility in the Territory. The family of the
deceased did not
wish to be heard on this application. Accordingly, the
Director of Public Prosecutions, Mr Refshauge SC, appeared to assist the
Court
as Mr Morters of his Office had appeared to assist the Coroner.
12. I wish to
record my gratitude for his assistance.
13. It is not necessary to recite these in detail. There is no real dispute as
to what actually happened.
14. On 22 April 2002, the deceased was the driver
of an Isuzu light truck when it was involved in an eight vehicle collision on
the
Hume Highway near Coolac in New South Wales. Another vehicle struck his
from the rear with considerable force. He was severely
injured and was
transported from the scene, after some delay, by SouthCare helicopter ambulance
to Canberra Hospital.
15. His injuries included head injuries, multiple
fractures, including ribs, a collapsed lung and ruptured diaphragm.
16. Death
occurred at 11.20 am on 12 May 2002.
17. The autopsy conducted on 14 May 2002
revealed that the deceased died as a result of Global Cerebral
Hypoxia.
18. The inquest, required by s 13 of the Coroners Act 1997 (ACT),
commenced on 13 December 2002. Proceedings against the driver of the
vehicle which struck the deceased’s vehicle
were not finalised until 4
August 2003. The inquest was delayed in the meantime. The driver of that other
vehicle was acquitted
of culpable driving.
19. The inquest proceeded again on
26 September 2003. Evidence was gathered and an expert appointed to assist the
Coroner by reviewing
hospital records. The inquest resumed on 27 October
2004.
20. On that day various documentary exhibits were tendered and oral
evidence was received. Of relevance to the comments now in dispute
was the
ambulance officer’s observation that, at the accident scene, it had been
considered necessary to ‘intubate’
the deceased. That is, to insert
a tube down the deceased’s throat to enable oxygen to be given.
21. It
was recorded that the relevant ambulance officer:
... made unsuccessful attempts to intubate [the deceased] with a larger size tube and a size six tube was eventually used.
22. On arrival at Canberra Hospital, the Intensive Care team decided that a
larger sized tube was necessary for adequate ventilation.
There was some
dispute about the timing of its insertion. The circumstances of those attempts
gave rise to the adverse comments
made by the Coroner.
23. Dr Anne Leditschke
was the specialist in charge of the ICU (Intensive Care Unit). S was a
registrar undergoing training as an
IC specialist, though he had already
qualified as an anaesthetist in Bombay (Mumbai), India, in 1993.
24. Efforts
to intubate the deceased by both S and Dr Leditschke failed. Dr Leditschke
decided to use a cricothyroidotomy procedure,
that is to cut into the wind pipe
from outside and insert a tube that way. Meantime, S had, with the aid of a
‘bougie’,
inserted a tube successfully. It does appear that that
process could well have been aided by the incision.
25. A bougie is a tube
which is more easily inserted into the trachea, over which the endotracheal tube
is fitted. It guides the
latter into place.
26. S was asked why he had not
used a bougie earlier. His response was “because at (sic) direct
laryngoscopy I was able to
visualise the vocal chords”.
27. Oral
evidence from S on that issue was taken over the telephone. The Coroner
acknowledged that the quality of sound was poor
and “leaves one to surmise
as to the exact answers” given by S.
28. S did say that, before he
attempted to intubate the deceased, he had discussed the procedure with Dr
Leditschke, “And she did
not instruct me to use a bougie”. As he
was able to visualise the vocal chords the use of the bougie was not, in his
view,
indicated. He had not, he said, experienced before the kind of difficulty
in intubating that he experienced with the deceased before
Dr Leditschke came to
take over the procedure. She had been attending to another
patient.
29. There was, he said, a gap of 3-4 minutes after the initial tube
removal before Dr Leditschke came over. He asked her if
he should, and
then did, try again, unsuccessfully “and then my consultant took
over”. In between, he used a bag and
mask to manually inflate the lungs.
It was, by then, up to seven minutes before the tube was successfully inserted.
He did say,
when queried by Mr Morters:
Q: So why was it, after you were unsuccessful after the first 30 seconds in intubating [the deceased], that you didn’t then elect to use a bougie to assist you in that process?
A: Because at that time I was trying to do the intubation the way I was told to do.
Q: In the first 30 seconds I accept that, but after that 30 second period why didn’t you then attempt to use the bougie?
A: Because I was not told to use the bougie.
Q: All right, well, based on the training that you received, do you think that it would’ve been appropriate for you to use the bougie after that 30 seconds had elapsed. ...
A: At that particular moment I was following the instructions of the senior person on the floor and then I was not instructed at that particular moment to use the bougie.
30. There was, S said, some risk of damage to smaller airways in using a bougie.
He did not consider that it was usually better to
use one. He did, however,
succeed, on the third attempt, in intubating the deceased when he used the
bougie.
31. It was, of course, a matter for clinical judgment as to whether,
if unassisted intubation was not successful, a bougie should
be used. It is
clear that S had not been instructed by Dr Leditschke, or any other more senior
practitioner, to use one. It seems
there was a revision, after this incident,
of the protocols for use of a bougie, apparently along the lines of the
suggestion in
Mr Morters’ questions cited above.
32. Nurse Just was
present, along with Nurse Lindbeck when S attempted to re-intubate the deceased.
She confirmed that, from her experience,
it was a matter of individual choice
for a doctor whether to use a bougie to assist intubation.
33. Nurse Lindbeck
had given evidence that, as S was having difficulty with the intubation of the
deceased, Dr Leditschke and Nurse
Just came over to assist. That may well have
been due to the alarm triggered by dropping oxygen saturation levels. It
certainly
coincided with it.
34. Next, the Coroner heard evidence from Dr
Leditschke. On hearing the monitor alarm, she said, she attended the deceased
and she
herself attempted to insert an endotracheal tube. That was unsuccessful
so she decided on a surgical insertion. Successful intubation
was then achieved
via mouth, as noted above, as she was in the process of doing so. She confirmed
that she did not instruct S as
to how he was to go about the intubation process
save that it had been agreed that a larger tube was required. She was aware of
four attempts (she thought) by S to intubate the deceased, the last being
successful with the aid of a bougie.
35. Dr Leditschke did note that, on
previous occasions when carrying out intubation procedures, S had not used a
bougie or similar
device or an exchange catheter when intubating. She was, she
said, happy to leave it to his judgment. She said:
Yes he has a lot of anaesthesia experience in another country and he had, as I’ve said, I had seen him perform a tube change competently and he had impressed a number of people in the unit with his technical skills in the time that he had been there whose judgment I respected.
36. At this point Dr Leditschke gave what the Coroner described as
“surprising and disturbing” evidence.
37. She commented that, on
her attempt at intubation, “I was having difficulty maintaining my
position at the head of the bed”.
38. That difficulty, she said, was
that:
At the time that I was trying to visualise the vocal cords, [S] was also trying to visualise the vocal cords, and trying to maintain his position at the head of the bed.
39. Each doctor was, she said, using a laryngoscope to visualise the vocal cords for the purpose of expediting the tube insertion. When asked why both were there she said:
Well, I indicated I wanted to have a look, and I was quite surprised when I discovered that I was having to jostle to try to obtain a view.
40. She said that she did not ask S to yield his position. When asked, in essence, “Why not?” she said:
I have a distaste for having stand up yelling matches over patients who are doing poorly. I think it’s better just to get on with it and try to do the best that you can. He’s bigger than me. You know, a suggestion had been made that I should’ve decked him.
41. She did not agree that S was being aggressive. She said:
No, he wasn’t overtly aggressive in other ways, he just wouldn’t concede his position in order that I could get an adequate view.
42. She added, “It’s my view that he lost the
plot”.
43. There was tendered to the Coroner an opinion of Dr Solano, a
consultant, that there was no conceivable reason for not using a
bougie or like
device. Quicker oxygenation would not necessarily have altered the outcome but
“the likely outcome would have
been different”.
44. However, Dr
Leditschke also indicated that, despite the failed attempts at intubating the
deceased, the levels of oxygen saturation
after the alarm went were still
satisfactory. There was about three minutes, she said, when the patient did not
have oxygen. It
was Dr Leditschke’s view that S had not adequately
carried out her instruction to keep the patient bag and mask ventilated.
As she
approached the head of the bed she said, “I’m going to have a single
intubation attempt and then I’ll do
a cricothyroidotomy if I can’t
see”.
45. S did not respond to that statement and did not move over.
It was not apparent that he heard her. She did not repeat her statement
nor, as
she conceded, did she expressly ask S to yield his position to her.
46. That
led to a request that S and Dr Leditschke be separately represented.
Mr Bradfield of counsel thereafter represented
S.
47. Dr Leditschke
thereafter proferred a further statement explaining the lack of any prior
reference by her to the incident with S.
She said:
I was never asked why I did not get an adequate view of the patient’s airway, and given the short time that the interaction with [S] took (I would not describe it as a “conflict”), I was of the view that it did not affect the outcome.
48. Whilst she had reported the incident to Dr Imogen Mitchell, Director of Intensive Care, she agreed that she had not thereafter raised it with S or anybody else. Although agreeing that the delay in re-intubating the deceased might have contributed to the death of the deceased, Dr Leditschke did not consider that there was any exacerbation by reason of the jostling incident. The oxygen saturation levels were ‘all fine’ when she came to assist S.
... And so it [ie. oxygen level] was just drifting down and I instructed him to bag and mask, ventilate, and I could see that he was not able to adequately bag and mask – get adequate ventilation with the bag and mask from what he was doing which is why I went – I turned my back to get a tube ready myself to have an intubation attempt and when I turned back he was having more intubation attempts. So I can’t comment about how much of the time I was turned away ...
49. That time, she said, was not very long and that delay would not have
affected the outcome.
50. It is apparent from her evidence that S did as he
was instructed, but that the outcome of his attempts at ventilation with bag
and
mask were simply unsuccessful. Dr Leditschke had intended, when she turned
back, to attempt an intubation via mouth and,
if she was unsuccessful, to
perform a cricothyroidotomy. It was when she moved back to explore the first
option that she came into
contact with S.
51. As the Coroner noted, the space
both doctors were in was “fairly confined”. Some contact would be
‘not unusual’
as between doctors in that situation. She had not
expected to find S attempting intubation as she turned back. S may have
indicated
he would like to have another go. Dr Leditschke did not agree that
she heard him say that – but agreed “it was possible”
that he
said it.
52. As to why S had, simultaneously with her, attempted to visualise
the vocal cords and intubate the deceased, rather than yielding
to her, Dr
Leditschke responded “It’s my view that he was so focussed on what
he was doing that he was oblivious to what
was happening around
him”.
53. Nurse Just was recalled and asked about this incident. She
conceded that she had not seen it but heard Nurse Lindbeck say, apparently
to Dr
Leditschke concerning what had occurred, “you should have decked
him”.
54. Nurse Lindbeck agreed that she had made the comment referred
to. The incident of ‘jostling’ had, she recalled taken
5-10
seconds. She had thought of “decking” S as the means by which Dr
Leditschke could take control from him. She did
not, of course, intend that
statement to be taken literally.
55. She agreed with Mr Bradfield, for S,
that S seemed focussed on the welfare of the patient at the time of his physical
contact
with Dr Leditschke.
56. Dr Imogen Mitchell herself had no direct
involvement in the attempts to intubate the deceased. She took part in the
“debriefing”
of the practitioners concerned, including S. It was
decided to reassess S’s airway management skills. These were found to
be
at an appropriate level. Dr Mitchell did receive a report from Dr Leditschke
that S “had made it difficult for her to gain
a good physical position to
re-intubate [the deceased]”.
57. Dr Mitchell did not, however, consider
it necessary to raise that issue with S or otherwise in the course of the review
that took
place of the difficulties experienced in re-inserting the endotracheal
tube into the deceased.
58. Whilst she did not, nor did Dr Leditschke, raise
“the jostling” incident expressly with S. Dr Mitchell did,
however, ask him if he believed he had been “unhelpful” to
Dr Leditschke in her attempt at re-intubation. His reply,
Dr Mitchell
said, was that he had no recollection of being so. Dr Mitchell did not further
enquire into the possible obstruction
of Dr Leditschke. Importantly, it
was her view, consistently with that of Dr Leditschke, that the incident had no
adverse effect
on the sequence of events leading to the death of the
deceased.
59. All the relevant doctors were greatly distressed by the adverse
outcome for the deceased. There was no adverse comment on S so
far as the
hospital was concerned. Dr Mitchell considered that it was appropriate to have
attempted to re-intubate the deceased
with a larger tube, as S did. That would
have been the more appropriate if he believed that Dr Leditschke had suggested
that he
make the further attempt at intubation which he made just prior to the
attempted surgical intervention. He had been assessed as
competent to perform
such a procedure both before this incident and afterwards.
60. Dr Solano, a
staff specialist in (inter alia) intensive care at Royal Prince Alfred Hospital,
Camperdown NSW was critical, in
his report to the Coroner, of the procedures
adopted. He was of the view that S was not experienced enough to have
undertaken re-intubation
without medical assistance. There should have been a
bougie deployed. That was contrary to Dr Mitchell’s evidence and it
was
not clear why he had a contrary view.
61. Dr Solano was later examined
orally, concentrating on the “jostling” episode. He stated that it
was not appropriate
for the less senior doctor to fail to yield priority to the
senior doctor present. He was, not unnaturally, unable to comment on
any effect
on the outcome for the patient, save that any delay would be harmful. It was
his view that it was “desirable”
when changing tubes to use a
bougie. He agreed that the only evidence he could find, on his review of the
notes, of low oxygen levels
was during the re-intubation attempts. However,
Dr Solano did make it clear that he had no major criticism of any aspect of
the care of the deceased in the Intensive Care Unit apart from the incident
between Dr Leditschke and S.
62. Mr Bradfield, for S, then tendered a
reference for S from Dr Martin Rowley of the Intensive Care Unit at
Newcastle’s John Hunter
Hospital. It highly commended his relevant skills
and competence.
63. It was submitted that there was an issue as to the use of
a bougie. It was put to the Coroner that it was a matter of clinical
judgment
whether to use one or not and views varied on that issue between relevant
specialists.
64. The Coroner appeared to accept that submission. He
responded that he would be “reluctant” to recommend that a bougie
be
used in every circumstance for intubation though procedures should, of course,
be kept under review. Mr Watts of counsel, for
the Territory, submitted that
there was no evidence to show why it was that S had difficulty with the
re-intubation process nor why
the oxygen levels fell notwithstanding the bagging
and ventilation procedure being administered with those attempts. He submitted
that the “jostling” episode was consistent with inadvertence on
S’s part due to his focus on the welfare of the
deceased.
65. Mr
Bradfield submitted that there was evidence of hypoxia having occurred at the
accident scene before the deceased was evacuated.
The Coroner pointed out that
Dr Solano had rejected that hypothesis, though Dr Leditschke had assessed
the deceased as “probably
hypoxic” on arrival at Canberra
Hospital.
66. There was also an issue as to whether S had asked Dr Leditschke
for permission to make another attempt at intubation. That attempt
was the one
undertaken with a bougie and was successful.
67. The Coroner did comment:
“Well I don’t dispute that he was trying to do his best. No-one
disputes that”.
68. Mr Lunney of counsel, for the relatives of the
deceased, submitted that, clearly, after the deceased was treated at ICU, his
oxygen
saturation levels dropped and had remained at critically low levels for
about 20 minutes. He criticised the decision to change the
endotracheal tube
pointing out that, at least in retrospect, that commenced the period of falling
oxygen saturation levels. That,
he submitted, was because S had mistakenly
believed that Dr Leditschke wanted the tube changed then and there rather than
proceeding
first with the lines that would deal with the blood pressure problem,
though it appears that that was also done. Further, he submitted,
it appeared
that S had not properly visualised the vocal chords, as was the accepted
procedure for successful intubation, nor had
he adequately used the mask and bag
to provide ventilation. In all, Mr Lunney submitted, there was a significant
period of time
during which the deceased was deprived of oxygen triggered by the
decision of S to give priority to changing of the endotracheal
tube, contrary to
Dr Leditschke’s instructions, though he conceded that the instructions
were given in a situation of stress
so that Dr Leditschke was primarily
relying on S’s judgment.
69. Mr Morters, counsel assisting, submitted
that the Coroner should make comment on four issues. Three of those related to
S. First,
his decision to attempt re-intubation, second, his decision not to
use a bougie to assist that attempt and, third, his failure to
yield to Dr
Leditschke. The fourth issue was as to a general review of procedures in ICU.
70. As to the first, he submitted it should be characterised as a wrong
decision. As to the second he urged that no particular view
be taken. As to
the third, he associated this with the fact that Dr Leditschke had given no
specific instruction to re-intubate
rather than to deal with the insertion of
lines thus leading to the conflict at the bed-head.
71. In saying that he
commented:
[S] didn’t come back and given (sic) evidence which refuted the information that Dr Leditschke had conveyed and he was given that opportunity too.
72. That was, to say the least, a serious issue. Up until then S had been
criticised in his absence by reference to evidence of
which he had had no prior
advice. He had, of course, been separately represented by Mr Bradfield after he
had given his evidence.
73. Ultimately the Coroner proceeded to his findings.
I refer only to those relevant to S. The Coroner was persuaded that there was
no “significant episode of low oxygen levels” before the deceased
was transferred to ICU. That, of course, was not itself
an indication of fault
on the part of ICU staff. However, the Coroner considered that there was
“reason to be critical of
the treatment received by [the deceased] and at
least one of the decisions made whilst [the deceased] was a patient in the
ICU”.
[S’s] decision to carry out that re-intubation at a time there was an emergency situation unfolding in the adjoining bed was most unfortunate and culminated in a disastrous outcome for [the deceased]. In my view, that showed a distinct lack of judgment on the part of [S].
74. His Honour also commented that:
... a further contributing factor to the outcome, was the failure of [S] to use a bougie to change [the deceased’s] tube.
75. Another adverse comment was:
It does [S] no credit to state that the reason he didn’t use a bougie was because he wasn’t instructed to do so by Dr Leditschke.
76. I would myself comment that this latter criticism was not entirely fair. It
was merely an acknowledgement by [S] that, whatever
his own judgment, and he was
an experienced anaesthetist, he would have used a bougie if Dr Leditschke had
instructed him to do so.
77. Then his Honour dealt with the conflict at the
deceased’s bed head.
78. S’s failure to yield to Dr Leditschke
was, his Honour commented, “both inappropriate and
unprofessional”.
79. That would seem to be a fair comment on the
objective situation which should be viewed in the context his Honour drew
attention
to, namely, that the conflict was a result of S’s concentration
on the task in hand which, admittedly, he had inadvertently
created by his, in
hindsight, incorrect decision to re-intubate the deceased then and there rather
than later when Dr Leditschke
was available to assist.
80. I do not, however,
see how that conflict, lasting but a few seconds, added significantly to the
deceased’s plight. Dr Leditschke
was intending then and there to
re-intubate via the trachea. If that was unsuccessful she was then going to
operate. Before she
could do either S had succeeded in re-intubating the
deceased.
81. There was also a comment that S had failed to comply with Dr
Leditschke’s instruction to mask and bag the deceased. That
is correct
only in the sense that it was not done effectively. The reason for lack of
efficacy was not known but there was evidence
that S had attempted the
procedure. It was not open on the evidence to conclude that S had disregarded
Dr Leditschke’s instructions
in this respect nor do I read the
Coroner’s report as doing so.
82. As required by s 55 of the Coroners
Act his Honour notified S of his proposed adverse comments. They were responded
to on 31 August 2006. It was submitted that they should
not be made in the
Coroner’s report.
83. The Coroner did not accept those submissions but
was moved to make a further adverse comment in recording his decision not to
accede to those submissions. It was:
I did not find [S] to be particularly forthcoming in his evidence...
84. His Honour declined to ‘re-open’ the inquest to consider
statements by Drs Rowley and Havill in support of S which
were submitted with
his response.
85. Drs Rowley and Havill in their report, concluded that there
was a “high likelihood” the deceased had suffered “significant
hypoxic injury” before arrival at ICU. Their view, which for completeness
I reproduce at Schedule 1, was a view that it was
open for the Coroner to take
on the evidence before him. He did not do so. It is entirely reasonable that
their views were not
persuasive. However, I do not agree that the Coroner was
entitled to disregard their comments. He should, in fairness, have noted
them
though he was perfectly entitled to decline to modify his criticisms of S as a
result.
86. S did offer a further statement. He had had prior opportunities
to do so but had declined. The Coroner states that he drew no
adverse inference
from S’s silence. That was proper.
87. Nevertheless, the failure on
the part of S to respond to the adverse evidence of Dr Leditschke left the
Coroner in a position
where he had no explanation from S as to what his state of
mind or awareness was when he decided to change the tube and then failed
to
yield to Dr Leditschke, until, he received S’s response to the s 55
notice. That response was, as required by s 55, annexed to the Coroner’s
report.
88. Coroners do not decide rights but evidence given to a Coroner may
be used to support subsequent civil or criminal proceedings,
perhaps adversely
to the witness. A Coroner’s report certainly may have a real effect on
reputation. A Coroner should not,
as his Honour accepted, draw an adverse
inference from failure to respond to evidence apparently critical of a
witness.
89. In a civil trial, a witness, by declining to give evidence, may
expose himself or herself to an inference that the evidence, if
given, would not
assist that party (see Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298; approved Azzopardi v R
[2001] HCA 25; (2001) 205 CLR 50). In other words, it would not assist to dispel an adverse
inference otherwise open.
90. There may be cases, as in Weissensteiner v R
[1993] HCA 65; (1993) 178 CLR 217, where an explanation of an apparently sound inculpatory case
can only be given by an accused person (or, as in this case, a person
adversely
criticised). That is a rare and exceptional case. Otherwise, it is not
permissible to suggest that a failure to give
or reply to inculpatory evidence
could lead to the more ready acceptance of that evidence. Of course, the
evidence is not thereby
contradicted by opposing evidence but it is important to
bear in mind that its weight is not in any way enhanced by its
non-contradiction.
91. In the present case, the Coroner adverted to the
likely reasons for S’s apparent errors of judgment. The first was because
he probably did not receive, as he said, a clear direction not to re-intubate
the deceased. He was skilled at that task and did
not anticipate the difficulty
that arose. Once he had extubated the deceased he was locked in to
re-intubating him quickly. It
was his concentration on that task that led to
his lack of appreciation that Dr Leditschke was requiring him to yield to her.
The
former rather than the latter was the more likely to have adversely impacted
on the deceased.
92. The role of the Court in reviewing a Coroner’s
report is necessarily limited.
93. The principles of natural justice are
applicable and a breach thereof may be prevented, or, if it has occurred,
remedied (see
R v Doogan [2005] ACTSC 74; (2005) 158 ACTR 1. That principle applies generally to
administrative inquiries (see McGregor & Pearce v The Hon John Gallop &
The Attorney-General
of the ACT [2002] ACTSC 45 (30 May 2002)).
94. In this
case review is sought pursuant to s 93 of the Coroners Act 1997. That review
may lead to the inquest being set aside and a new inquiry ordered. However, the
parties to this application are agreed
that individual comments may be quashed,
if cause is shown, without going to that length (see eg Mahon v Air New Zealand
[1984] AC 808).
95. Before considering individually the adverse comments Mr
Bradfield (supported by Mr Watts for the Territory) submits I should
quash,
there are two general complaints Mr Bradfield makes that I should refer
to.
Delay
96. The Coroner finalised taking of evidence and receipt of submissions on 7
July 2005. The draft findings were conveyed to S’s
legal representations
by an undated letter in early August 2006. On 11 August 2006, Mr Bradfield
sought an extension of time to
respond thereto.
97. It follows that some 13
months elapsed before the Coroner’s decision was in draft form. The
response to Mr Bradfield’s
submissions dated 5 September 2006 addressing
the proposed adverse comments, was the final report of the Coroner handed down
on 8
September 2006. It is apparent that those submissions did not cause any
substantial alteration to the draft report. The Coroner
did, as required by
s 55 of the Coroners Act, annex the statement of S in response to the
proposed adverse comments but did not annex the report of Drs Rowley and
Havill.
98. It is not possible, of course, to adversely criticise the Coroner
for the delay in completing the draft report. It was a complex
matter as my
summary of the proceedings would indicate. However, that delay does lead to
certain consequences. The relevant one,
for present purposes, is that it
becomes more difficult to criticise witnesses based on demeanour the longer the
delay since they
gave evidence. That consideration impacts particularly on the
further adverse comment the Coroner made in his response to the submissions
of S
concerning the then proposed adverse comments.
99. In my view, it was not
fair for that further adverse comment to have been made both because of the
delay and because, appearing
only in the final report, it had not been referred
for response as required by s 55 of the Coroners Act. I direct that it be
quashed accordingly.
100. Mr Bradfield’s other general point was that
the Coroner failed sufficiently to explain the reasons for his adverse comments
and, in any event, did not explain why S’s response to them was rejected.
Mr Watts supported that contention characterising
the reasons given by the
Coroner in general as large slabs of transcript interspersed with occasional
comments.
101. Mr Refshauge supported the criticisms made by the Coroner
though without urging that S had in any way demonstrated incompetence
or
improper behaviour in any subjective sense. He did not contend that the
evidence demonstrated that S had failed to carry out
Dr Leditschke’s
express request to mask and bag the patient. As to the response from Drs Rowley
and Havill, Mr Refshauge submitted
the Coroner was entitled not to admit it as
part of the evidence. It was, after all, a critical review of the clinical
notes and
not entirely clear as to what notes were reviewed.
102. He conceded
it might have been better for the Coroner to have addressed the response of S
more adequately than he did but that
should not lead to a reopening of the
inquest. Nor did Mr Refshauge seek to defend the Coroner’s addition of
the further adverse
finding as to S’s credibility occurring as and when it
did.
103. Mr Watts, in reply, contended that the Coroner should not have
characterised S’s conduct, at the bed head, as harshly as
he did, given
that S had not had the incident put to him for comment until his final
statement.
104. Mr Bradfield, in his reply, focussed on the relationship
between the difficulties with the re-intubation and the cause of death
found by
Dr Jain, the pathologist.
105. I have to say, having set out the
Coroner’s decision to report as he did and reasons for it, including the
decision to
make comments concerning S, that those comments and the reasons for
making them are adequately explained. I turn to the specific
comments.
Comment 1 – The decision to re-intubate the deceased
106. That decision was, it was not disputed, not mandated in its timing by Dr
Leditschke. It was open to the Coroner to find that
she had not expected it to
be attempted when it was by S and that some difficulty could, though with
hindsight, be anticipated.
As a matter of fact it was open to the Coroner to
conclude, as he did, that that decision “triggered” the unfortunate
consequence for the deceased that Dr Jain found to have occurred, that is global
cerebral hypoxia.
107. It should be noted, and this was not disputed by the
Coroner’s findings, that S did understand that the tube would need
to be
changed. To do so was well within his competence and the difficulty he
encountered was not one he anticipated even allowing
for the difficulty
experienced by ambulance officers at the accident scene. The comment amounts to
a finding that S, in retrospect,
should have waited for Dr Leditschke to
have dealt with the emergency in the adjoining bed first before proceeding with
the
re-intubation. That was a comment fairly open to the Coroner to
make.
Comment 2 – Failure to use a bougie.
108. It could not be said, in my view, that any re-intubation attempt should
have been with the aid of a bougie. The overwhelming
view of relevant medical
specialists was that it was a matter for individual clinical judgment. The
re-intubation eventually succeeded
with a bougie being used by S. That was
after Dr Leditschke had cut the deceased’s throat to perform a
cricothyroidotomy.
Whether it would have succeeded in any event without that
incision is not clear. Again, in retrospect, it may have been better
to have
used the bougie once the first attempt failed, but the risk factors in doing so
could not be ignored.
109. Certainly, it was open to the Coroner to have
adopted Dr Solano’s opinion, as he did, though it could not be said to be
the only view open on the evidence.
Comment 3 - It did S “no credit” to state that the reason he did not use a bougie was because he was not instructed to by Dr Leditschke.
110. That, in context, is a statement that I cannot understand. Factually it
was true that Dr Leditschke had not instructed
the use of a bougie either
generally or in the particular case. For S to acknowledge that said nothing as
to his “credit”.
111. That comment therefore has no rational
basis and should be quashed.
Comment 4 – S’s failure to yield his position at the head of the bed to Dr Leditschke was “both inappropriate and unprofessional”.
112. There is no doubt, as counsel have urged, that S’s failure to yield,
undoubtedly factually established, was occasioned
by his concentration on the
task he had embarked upon. The Coroner did not find to the contrary of that.
It was thus the case that
his failure to yield, as it was conceded he should
have, was not an act of defiance but of inadvertence.
113. The Coroner
characterised that failure as “inappropriate and unprofessional”.
That may seem harsh, as his counsel
submitted. However, it is, objectively, an
appropriate characterisation. S’s undue concentration on his task was
occasioned
by his endeavours to correct the emergency situation he found himself
in. It is not a “blame” statement but a fair characterisation
of
the unseemly sight of two doctors jostling to perform, simultaneously, the same
procedure.
Comment 5 – The failure to yield hindered Dr Leditschke in her efforts to properly re-intubate the deceased and led to further delays in restoring an adequate airway.
114. That statement is directly contrary to the evidence of Dr Leditschke
herself. Whilst unseemly, the jostling lasted a few seconds
only. Before Dr
Leditschke could execute her plan to insert a tube surgically, S had succeeded
in re-intubating the patient.
115. It was not open to the Coroner to make
this comment and I quash it accordingly.
Comment 6 – There was ample evidence that the deceased was not being “properly” bagged and ventilated during the “numerous” intubation attempts and that S failed to comply with Dr Leditschke’s instructions to use the mask and bag.
116. There is no evidence to suggest that S did not attempt to comply with Dr
Leditschke’s express instruction to use a mask
and bag. He was observed
to be doing so. It was, however, clear that the mask and bag did not succeed in
providing sufficient ventilation.
It does not appear that was due to any
failure on the part of S to “properly” use the mask and
bag.
117. It is a fair comment that the need to use the mask and bag was, at
least to some extent, a consequence of the decision of S to
proceed to
re-intubate before Dr Leditschke was available to assist in or undertake that
procedure.
118. Save to that extent, the comment is not open on the evidence
and must be set aside.
Comment 7 – That failure was “another factor” in the overall failure to provide an adequate supply of oxygen to the deceased for some considerable period of time.
119. Having regard to my assessment of comment 6, this comment cannot stand. Even Dr Solano, who was generally critical of S, did not contend that the mask and bag would have made a difference if used more effectively than he assumed it had. I set aside this comment accordingly.
120. It follows that this application should succeed to the extent indicated above. I do not consider that the inquest needs to be reopened. I will hear the parties as to costs and consequential orders.
I certify that the preceding one hundred and twenty (120) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.
Associate:
Date: 21 December 2007
Counsel for the applicant: Mr Ian Bradfield
Solicitor for the
applicant: Mr Ian Bradfield
Counsel for the first respondent: Mr R Refshauge
SC
Solicitor for the first respondent: ACT Director of Public
Prosecutions
Counsel for the second respondent: Mr J Watts
Solicitor for
the second respondent: ACT Government Solicitor
Date of hearing: 5 September
2007
Date of judgment: 20 December 2007
SCHEDULE 1
1. The evidence, if any, of hypoxia at the scene of the accident and continuing to the time Mr Ritchie came into contact with Dr S.
I have examined the documentation provided to me, and have arrived at the following opinion. Due to the injuries sustained by Mr Ritchie as a result of the motor vehicle accident and the circumstances around the transportation to Canberra Hospital, that there is a high likelihood that Mr Ritchie sustained significant hypoxic injury.
I have been able to come to this conclusion for the following reasons.
Hypoxia is very probable because of the severe chest injury with almost all his ribs broken, many in more than one place (flail chest), left haemothorax and at best an oxygen saturation of 94% on mask oxygen. The agitation and the wanting to sit up are all possible indications of hypoxia and associated breathing difficulty.
During this time irrespective of the appropriate assisted ventilation by mask being performed, adequate ventilation would have been difficult to maintain because of the combination of the patients chest injury, patient size and the patient being placed lying down and sedation administered. There is no record of oxygen saturation during this period.
The events prehospital occurred over a period of 2 hours and 30 minutes which is ample time for severe hypoxic/ischaemic brain injury to have occurred.
Following intubation Mr Ritchie was heavily sedated with an infusion of morphine and midazolam. Hence neurological assessment would be very restricted and it would be impossible to determine using normal clinical examination if hypoxic injury had occurred.
Non reactive pupils were recorded both by the ambulance officers after intubation and again by emergency staff at Canberra Hospital. Non reactive pupils could be indicative of severe hypoxic brain injury. The recording of a coma score of 3 out of 15 (the lowest possible score) on arrival in the Emergency Department, would be unusual with a morphine and midazolam infusion alone, and could indicate profound hypoxic brain injury. The only documentation of brain function was from a statement by Mr Hogan, that Mr Ritchie was making some spontaneous breathing effort on transport to hospital.
Although Mr Ritchie was investigated with a cerebral CT scan in the first few hours after arrival at Canberra Hospital, it would unusual for a cerebral CT scan so soon after hypoxic injury to show significant changes. Hence this scan could not rule out hypoxic/ischaemic brain injury having already occurred.
2. Whether or not it was appropriate for Dr S to re-intubate at the time he did having account of the evidence.
It is vitally important in the context of a head injury and associated chest injury that ventilation is managed carefully. The high and persistent airway pressures recorded in the Emergency Department and small endotracheal tube should have caused significant concern in his ventilatory management. I am surprised in the hours in the Emergency Department, before he was admitted to Intensive Care that once Mr Ritchie was stabilised, the endotracheal tube was not changed or that an arterial blood gas was not documented.
3. What would have been the long term effect if Dr S had not changed the endotracheal tube.
Management of ventilatory support is a vital part of the care of a man with
severe chest and head injuries. Not changing the tube
would have interfered
with this. It is regarded as ‘standard of care’ in the intensive
care community.
It would be expected with the degree of chest injury suffered
by Mr Ritchie that his ventilation would become more difficult in the
ensuring
hours, changing the endotracheal tube early rather than later would be
prudent.
4. Was the decision for Dr S to re-intubate when he did a sound medical decision?
Dr S was tasked by his more senior and experienced ICU consultant to manage the care of Mr Ritchie. It was discussed that changing the endotracheal tube would be required. There is no documentation that other measures should have been undertaken before reintubation was attempted.
It is my understanding that some unrecorded ventilator parameter changes had been made to reduce the peak inspiratory pressure, but again these pressures were increasing. This would have increased the perceived urgency of changing the endotracheal tube.
In the light of subsequent events, it may have been prudent to have measured arterial blood gases and inserted of a right sided chest tube in view of his right chest injury, even though no pneumothorax was demonstrated on his chest CT scan prior to reintubation.
5. Was it reasonable and within generally accepted practice that Dr S did not use a bougie when changing the endotracheal tube?
Dr S was an experienced intubator as shown in his prior experience in India
and subsequently assessed by expert anaesthetists at Canberra
Hospital.
It is
documented that Dr S appropriately assessed the vision of the larynx by direct
laryngoscopy to determine ease of reintubation
prior removing the 6mm
endotracheal tube.
Dr S would expect that because Mr Ritchie was no paralysed with a muscle relaxant that the intubation conditions would have been much better and hence would expect less difficulty than confronted the ambulance officers at the accident scene.
Dr S took reasonable steps to assess the difficulty of intubation prior to his attempt and his assessment was that he could change the endotracheal tube without difficulty. He had experienced nursing staff to assist and intubation equipment (including a bougie) brought to the bedside. Hence he has made reasonable assessment of the intubating conditions and ensured reasonable appropriate equipment was available within the unit at the time.
In the above circumstances and with the assessment steps taken, many reasonable Intensive Care practitioners would have attempted to change the endotracheal tube without the use of an exchange bougie. The use of an exchange bougie will not alleviate all difficulties and can slow the reintubation process. It is not mandatory to use a bougie in the John Hunter Intensive Care where I work.
6. Is it the case that Dr S did successfully reintubate Mr Ritchie in earlier attempts but it was the existence of a right sided pneumothorax which caused the complication to Mr Ritchie. If so what evidence is there to support your conclusion?
Mr Ritchie developed a right tension pneumothorax as documented within the operative report of the 22nd April. It is not clear when this developed. It was not present at the time of the thoracic CT. The initial observations in ICU at 2200 recorded by the bedside nurse were that the breath sounds were equal in both lung fields, this would not be consistent with the signs of a tension pneumothorax. The ED admission notes document a small right pneumothorax present on arrival at The Canberra Hospital. This remained undrained, and perhaps it should have been drained in the ED.
The reported rise in airway pressure prior to reintubation may support the possibility of it having occurred at this time. The unexpected deviation of the trachea associated with this condition could have increased the intubation difficulty and equally could have mislead the clinical signs of successful endotracheal intubation, because normal clinical signs of successful intubation and ventilation such as breath sounds and chest movement would have been reduced or absent movement over the right lung field and potentially the left.
A tension pneumothorax will have a profound effect on reducing cardiac output and hence oxygen delivery to the brain. The effect will be more profound than hypoxia alone.
The profound lactic acidosis and slow recovery of oxygen saturation after intubation and rapidly increasing adrenaline requirement supports the presence of the tension pneumothorax at this time.
It appears clear that Mr Ritchie was also bleeding into the abdomen at the time. This would have two effects of
1) Distracting the medical staff as to the cause of the haemodynamic instability
2) Compounding the hypotension and reduced oxygen delivery associated with the tension pneumothorax, and greatly compounding any brain ischaemic event.
7. What could the effect of a right sided pneumothorax have on the effect of any bagging or ventilation?
The right tension pneumothorax would have made mask and bagging extremely difficult. Little air would be expected to enter the lungs and be forced in to the stomach resulting in gaseous distension of the abdomen.
8. What effect did the bagging and ventilation have on the right sided pneumothorax?
Positive pressure ventilation by bagging or by a mechanical ventilator would increase the tension pneumothorax, making it increasingly more difficult to ventilate, oxygenate the patient, reduce cardiac output and subsequently blood pressure.
9. If the incident in ICU had not occurred, what would have happened to Mr Richie?
Given the severity of his head, chest and abdominal injuries, and assuming
that all the other aspect of his care had been the same,
there is a strong
likelihood that Mr Ritchie would have died as a result of those injuries
anyway.
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