Findings

Charge Characteristics

Additional Orders

Commonly
Cited Cases

Precis

Charge:  

A Complaints Assessment Committee of the Medical Council of New Zealand charged that Dr MacDonald was guilty of professional misconduct in that:

1. He implemented procedures at a Hospital for the taking of blood samples pursuant to section 58D of the Transport Act 1962 which were contrary to proper and accepted professional practice and/or law;

Particulars: [Dr MacDonald] instituted a "protocol" requiring that he be consulted on every occasion the Police requested an evidential blood sample, notwithstanding the presence on duty of other registered medical practitioners.

and

2. Having usurped or assumed responsibility when on or about 25 November 1995 an evidential blood sample was requested in respect of a patient, failed to ensure a blood sample was taken in accordance with section 58D of the Transport Act 1962.

Particulars: [Dr MacDonald] directed that the process be put on hold pending his attendance, but then despite his acceptance it was not prejudicial to the proper care or treatment of the patient, no sample was taken in the manner required by law.

Background: 

The events which gave rise to the charge arose out of a motor vehicle accident involving a collision between the motor vehicle driven by the patient and that driven by another person. The accident was caused by the patient's car crossing the median line. The person in the other car died shortly after the accident.

The patient was brought to the Acute Admissions Unit (AAU) where she was seen by a first year house surgeon, who was, in accordance with the relevant professional registration rules and requirements, practising under probationary registration. The patient admitted to drinking two glasses of wine in the afternoon prior to the accident, which occurred at approximately 6.50 pm. The police officer who was investigating the accident asked the house surgeon for an evidential blood sample from the patient.

Dr MacDonald required that when he was the consultant on duty or on call all requests for evidential blood samples were to be referred to him. If he was not at the hospital when a patient was admitted to the AAU, but he was the consultant on call, he would come in and see the patient before making the decision whether or not to permit the blood sample to be taken. It seems likely that the house surgeon telephoned Dr MacDonald shortly after 9.00 pm to report the patient's admission and condition. Dr MacDonald estimated that he examined the patient and instructed that the evidential blood sample could be taken within approximately 20-30 minutes of receiving the call from the house surgeon.

No evidential blood sample was taken from the patient. However a Laboratory Request Form for a 'blood alcohol level' test was completed and dated 26 November 1995 and a clinical blood alcohol test was subsequently carried out and reported by the hospital laboratory.

Finding:

The Tribunal found Dr MacDonald not guilty of professional misconduct or of conduct unbecoming a medical practitioner and that conduct reflects adversely on the practitioner's fitness to practise medicine.

The Tribunal found that Dr MacDonald did not implement any procedures at the hospital which were contrary to proper and accepted professional practice and/or law. The Tribunal was satisfied that Dr MacDonald had instructed that, when he was the Senior Medical Consultant on duty, or on call, all requests for evidential blood alcohol were to be referred to him. The Tribunal was satisfied that this instruction was part of a more general instruction to the doctors working in the AAU that all admissions were to be referred to him when he was the Senior Medical Consultant on duty or on call.

The Tribunal accepted that if Dr MacDonald was on duty or on call, then without exception he regarded himself as being "in charge" of the patient.

The Tribunal found for the purposes of s 58D of the Transport Act, the house surgeon could validly have taken the evidential blood sample from the patient. The protocol by the hospital did not require every request for an evidential blood sample to be referred to a senior medical consultant but neither did it prevent any of the senior consultants from imposing that requirement on the junior medical officers. The Tribunal was satisfied there was no undue delay caused as a result of Dr MacDonald's decision to examine the patient himself and his instruction to the house surgeon not to take an evidential blood sample when they discussed the patient's case by telephone.

The Tribunal found part one of the charge was not established.

When considering part two of the charge the Tribunal was satisfied that Dr MacDonald did assume responsibility for making the decision whether or not the evidential blood sample could be taken, and having satisfied himself that it could be taken without prejudicing the patient's care or treatment he was legally required to take the sample, or cause it to be taken. The Tribunal was satisfied that Dr MacDonald instructed the house surgeon to take the sample but found that Dr MacDonald's legal obligations did not immediately come to an end. The Tribunal found that in effect he instructed the house surgeon to carry out his legal obligations for him. On that basis Dr MacDonald was obliged to ensure the house surgeon was familiar with all of the relevant legal requirements. It was not sufficient for him to simply expect the house surgeon understood what was being asked of her. Dr MacDonald did not consider he had any obligation to check whether or not junior doctors were familiar with any relevant protocols, or even to tell them of its existence. The Tribunal considered that Dr MacDonald, like all senior practitioners who are responsible for supervising junior staff, has a responsibility not only to issue instructions from "on high" but also to contribute to the professional education of junior doctors.

The Tribunal found that, given Dr MacDonald had taken charge of the patient, he was legally required to ensure that an evidential blood sample was taken. He failed to do so and as a result no evidential blood sample was obtained.

Having determined that the factual basis of part two of the charge was established the Tribunal then went on to consider whether or not Dr MacDonald's failure to obtain the evidential blood sample, or to cause the sample to be taken constituted conduct that warranted the sanction of an adverse professional disciplinary finding. The Tribunal was satisfied that the omissions on the part of Dr MacDonald which contributed to the failure to obtain the evidential blood sample did not constitute such a departure from acceptable professional standards that they warranted an adverse finding against Dr MacDonald.