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Charge:  

A Complaints Assessment Committee charged that Dr Ian Scott Little was convicted of the following offences each being an offence punishable by imprisonment for a term of three months or longer:

1. Failure to provide the necessaries of life, section 151 Crimes Act 1961;
2. Advertising the availability of Exoderm Facial Peel before consent or provisional consent of the Minister to the distribution of Exoderm had been notified, section 20(2) Medicines Act 1981 (2 counts).

The charge alleged that the circumstances of the offences reflected adversely on Dr Little's fitness to practise medicine.

Dr Little pleaded guilty to the three charges above. Dr Little had pleaded guilty to a charge of failing to provide the necessaries of life in the High Court at Christchurch and was fined $30,000. Dr Little was discharged pursuant to s347 of the Crimes Act in relation to a charge of manslaughter. In relation to the two convictions against the Medicines Act, the District Court fined Dr Little $5,000 on each charge plus costs.

Background: 

In 1999, Dr Little was practising as a general practitioner specialising exclusively in the field of appearance medicine. In approximately April 1998, Dr Little was approached by the New Zealand distributor of a phenol-based preparation known as "Exoderm" which was marketed as a safer alternative to other phenol-based preparations used in appearance medicine. Dr Little advised that he had been doing chemical face peels since 1993 and he therefore had considerable experience in carrying out the procedure.

Phenol (also known as carbolic acid) produces a chemical peeling effect when applied to the face. One of the known side-effects of phenol is that it can cause cardiac arrhythmia and, on occasions, cardiac arrest. As a result, doctors using phenol-based preparations regard continuous cardiac monitoring and the availability of appropriate resuscitative drugs and emergency equipment as essential when carrying out chemical face peeling procedures.

Dr Little entered into an exclusivity arrangement with the distributor of Exoderm. Dr Little was apparently assured that there was no risk of cardiac arrhythmia occurring, such as was present with the existing chemical peel procedures. Dr Little performed ten Exoderm procedures without incident. The tenth of these procedures was filmed and shown on the Holmes television programme as a marketing exercise. In some but not all of the ten procedures undertaken, Dr Little used a pulse oximeter (which monitors oxygen levels in the blood and also the patient's pulse). The use of a pulse oximeter was recommended by the developer of Exoderm and was used in the procedure shown on the Holmes show.

The procedure that was the subject of the charge was also carried out as a marketing exercise. Dr Little performed the procedure in the presence of a photographer who was taking photos for publication in an article in the New Idea women's magazine.

The patient had a number of risk factors for cardiac disease. However when she presented for the procedure she was symptom free and in apparently good health.

Dr Little had ordered a resuscitation kit and a pulse oximeter but at the time of the procedure neither had arrived. The patient signed a consent form prior to the procedure, but the form did not indicate to her that Dr Little intended to carry out the procedure in a way which did not conform either to the recommendation that pulse oximetric monitoring be maintained during the procedure or to the ANZCA guidelines for "Sedation for diagnostic and surgical procedures".

In sentencing Dr Little, the High Court Judge remarked that "rational communication" with the patient was lost from the outset of the procedure and he should not have resumed the procedure unless another doctor was available to monitor the patient and to take responsibility for further sedation, analgesia or resuscitation. There was also no continuous monitoring of "the level of consciousness and cardio-respiratory function of the patient" which was required under the guidelines, particularly as there was no pulse oximeter.

The evidence provided to the sentencing Judge was that during the procedure the patient appeared to be in a deep sleep. She did not grimace or moan or respond when spoken to. There was evidence that the patient snored during the procedure. About 30 minutes into the operation, the patient gave a bit of a start and took a gasp of breath and then seemed to sigh. Dr Little responded by administering morphine. The patient then gave a loud sigh or groan and it was at about this time that it became apparent that there was a major problem. Dr Little called out to the patient but there was no response. Dr Little attempted to rouse the patient but there was no response and it was then discovered that she had no pulse and was not breathing.

Dr Little and his nurse attempted resuscitation. However, no artificial airway was available as it had been left in Dr Little's car. Dr Little had no oxygen available nor did he have a suction device or manual resuscitator. An ambulance was summoned and with their equipment the ambulance officers were able to continue resuscitation attempts but were unsuccessful. After approximately 30 minutes or so, the ambulance officers formed the view that the situation was hopeless. Dr Little instructed the officers to continue resuscitation in the ambulance on the way to hospital and eventually the patient was successfully resuscitated in the ambulance to the extent that full cardiac activity was restored. However, by then she had suffered irretrievable brain damage and she died in hospital three weeks later.

Finding:

The Tribunal was satisfied the convictions reflected adversely on Dr Little's fitness to practise medicine. The Tribunal expressed concerns about the level of insight Dr Little truly had about the nature of his failure to provide adequate care to the patient and the degree to which he fell short of acceptable standards of care. The Tribunal considered he seemed to still blame others for what happened. The Tribunal was satisfied in terms of his professional obligations towards the patient on the day of the procedure, and especially in the course of administering and managing her sedation, there could be no suggestion that others could, or should, have done more to keep his patient safe.

The Tribunal put to one side the fact that Dr Little's conduct was also the subject of the other proceedings in other contexts. It is required to adhere to the statutory purpose of the Act, and to take into account the fact that the patient's death had occurred squarely in the context of a doctor-patient relationship. The Tribunal considered as her doctor, Dr Little owed obligations to the patient over and above any obligations he owed as a citizen, and that he failed to take responsibility for his care of the patient in the following respects:

1. He did not act in the patient's best interests in that he failed to have regard to either her particular interests as his patient, or her interests relative to his own;
2. Pre-procedure - He failed to make an adequate pre-procedure assessment of the patient's needs in terms of:

• her suitability to undergo the procedure,
• the presence of known risk factors in the context of the procedure,
• the likelihood that the risks known to be associated with phenol-based procedures might eventuate, and/or
• the need to ensure her safety during the procedure and in event of an emergency;

3. During the procedure - His management of the major sedation he administered could only be described as "abysmal". He lacked basic equipment, and basic knowledge. The Tribunal did not accept his evidence that the patient was 'rousable', i.e. "conscious" as required under the relevant guidelines, during the procedure. His shortcomings in this regard is exacerbated by his unapproved use of a medicine with serious potential side-effects.
4. Emergency care - His instruction to the ambulance officers to continue resuscitation was not in the best interests either of the patient or her family and greatly increased their subsequent suffering and distress.

The Tribunal further considered it was also relevant that the procedure was elective, so there was no clinical reason why the procedure had to occur at that time, or even at all.

The Tribunal was satisfied that Dr Little was motivated to carry out the procedure by commercial considerations and he failed to turn his mind to keeping his patient safe. His failure to provide proper care to the patient constituted the most serious departure from professional standards.

Penalty:

The Tribunal ordered that Dr Little be censured, that his name should be removed from the register and that he may not apply for restoration to the register for a period of not less than six months. Dr Little was also ordered to pay 50% of the costs and expenses of and incidental to any or all of the CAC's inquiry and prosecution of the charge and the hearing by the Tribunal.

The Tribunal further ordered that if Dr Little's name is restored to the register after six months, then for a period of three years from the date of the Tribunal's Decision he is to practise under the following conditions:

1. Dr Little is not to undertake procedures that involve sedation; and
2. Anaesthesia is to be restricted to local anaesthesia; and
3. In order to ensure compliance of this condition, Dr Little is to keep a log of procedures including medication that is to be countersigned by a registered nurse who has knowledge of the procedures performed. That log is to be available for regular review; and
4. In the event that any procedures requiring the administration of sedation are undertaken at any clinic owned and/or operated by Dr Little, then an appropriately trained medical practitioner other than the practitioner carrying out the procedure must be present and be responsible for the administration of sedation and monitoring the patient; and
5. If there is a risk of loss of consciousness during any procedure undertaken by or under the supervision of Dr Little, then an anaesthetist must be present to care exclusively for the patient.

In a supplementary order the Tribunal ordered publication of the hearing in the New Zealand Medical Journal.

Appeal:

An appeal on behalf of the Doctor to the District Court, against the Tribunal Decision, was discontinued.