Findings

Charge Characteristics

Additional Orders

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Precis

Charge:  

A Complaints Assessment Committee charged that Dr Graham Keith Parry was guilty of professional misconduct in that:

1. The patient had given informed consent for only a minor procedure, namely an assessment under anaesthetic, including a cystoscopy, but Dr Parry proceeded to a major operation, namely an attempt to repair the vesico-vaginal fistula with no prior consent or discussion of the implication of this action with his patient, and/or
2. Consultation with a urologist was only sought very late in the management of the vesico-vaginal fistula.

Background: 

On 12 October 1988, the patient was admitted to Northland Hospital for a vaginal hysterectomy and anterior and posterior repairs. The surgery was performed by Dr Parry and during the procedure the bladder was inadvertently opened. This was recognised by Dr Parry at the time and repaired.

On 18 October 1988 the patient was discharged home from hospital. The patient stated it had become apparent to her that she was continuing to leak urine through her vagina. She was wearing sanitary pads and tampons to control the leakage and noticed that the problem was especially bad when she was mobile and standing up.

On 22 November 1988 the patient returned to Dr Parry for a further consultation. What precisely was discussed between them at this consultation was in dispute. The patient said she understood that she was to be readmitted to Northland Hospital for a cystoscopy only and one night's stay. Dr Parry said he understood that he had the patient's consent to undertake the cystoscopy and that if a fistula were present that he would proceed to repair it.

On 30 November 1988 the patient was admitted to Northland Hospital to undergo a second surgical procedure. The patient said she did not see Dr Parry prior to the surgery. Dr Parry said that it was his normal practice to visit and speak with patients in the anaesthetic room before the patient was anaesthetised. He said that he expected he would have spoken with the patient before she was anaesthetised prior to the surgery.

The patient signed a consent form in the following terms:

"I, [the patient] of … hereby consent to the operation of cystoscopy to be performed upon myself.
I acknowledge that the nature and effect of the operation have been fully explained to me, I also consent to such further or alternative operative measures as may be found necessary during the course of such operation or during the treatment period subsequent thereto and to the administration of a local or other anaesthetic for the purpose of such operation or operations."

Dr Parry said he thought that the consent form gave appropriate consent for the cystoscopy procedure (which was to check whether the repaired fistula had not been successful or effective) and for further or alternative operative measures as he considered necessary.

On 30 November 1988 Dr Parry carried out the cystoscopy and saw that the fistula was clean, in good condition and at an appropriate tissue state for repair. At that point Dr Parry sought to make contact with the sole urologist in Whangarei, but was unsuccessful.

Dr Parry stated that he considered the repair was necessary and in the best interests of the patient. He was satisfied that he had obtained consent from the patient and that the consent form itself gave him appropriate authority. As he believed he had such consent he proceeded to repair the fistula from an abdominal approach. He was confident in his ability to perform that procedure.

The patient said that following the second procedure on 30 November 1988 until 7 December 1988 she experienced quite severe bladder spasms which had not been previously present. She was in continual pain and required medication to manage it, and that each day following the second operation, she saw and spoke with Dr Parry but was not satisfied with the extent of their communications.

On 7 December 1988 the patient signed another consent form consenting to Dr Parry performing a cystoscopy and a supra pubic catheter insertion in an effort to stop the spasms. On 13 January 1989 the patient signed a further consent form for another cystoscopy operation to enable the removal of a broken piece of the catheter. On 18 January 1989 the patient signed another consent form consenting to a cystoscopy and the insertion of a new supra pubic catheter.

On 11 February 1989 the patient was readmitted to Northland Hospital where she met a urologist for the first time. On 2 March 1989 the urologist, assisted by Dr Parry, undertook surgery to repair the vesico-vaginal fistula and, on 17 March 1989, the patient was discharged from hospital by the urologist with no apparent vaginal leaks or discharge.

Finding:

The Tribunal found Dr Parry not guilty.

The Tribunal was not satisfied Particular 1 was established. The Tribunal considered there was not any real dispute that Dr Parry proceeded to repair the fistula in order to fix the problem the patient presented at the consultation on 22 November 1988 and what Dr Parry learned on performing the cystoscopy. The Tribunal was satisfied that Dr Parry operated in what he believed were the best interests of the patient.

The Tribunal accepted the patient may not have fully appreciated what was ultimately involved. Equally it accepted Dr Parry, in the consultation of 22 November 1988, may have believed he had explained enough to her of the possibility of therapeutic surgery, to gain a sufficiently clear understanding that she wanted the problem fixed and that if the cystoscopy confirmed the fistula, he should proceed to repair it. The Tribunal found that Dr Parry, having seen the patient had signed a consent form for a cystoscopy and "such further or alternative operative measures as [might] be found necessary during the course of such operation" genuinely believed he was authorised to repair the fistula.

The Tribunal considered the evidence established that it was not until after 1988 that the message of informed consent as it is now understood was clearly put before members of the medical profession.

The Tribunal found Particular 2 was not established. The Tribunal was satisfied that at the material time it was accepted practice for a gynaecologist of Dr Parry's experience to perform a fistula repair in circumstances such as occurred with the patient and that it was not considered necessary to refer her to a urologist.

Appeal:

The Complaints Assessment Committee appealed the Decision of the Tribunal to the District Court.  The District Court dismissed the appeal.  (CAC v Parry (District Court, Auckland, MA No. 64/02, 16 May 2003, Hubble DCJ)).