Findings

Charge Characteristics

Additional Orders

Commonly
Cited Cases

Precis

Charge:  

The Director of Proceedings charged Professor Francis Antony Frizelle with conduct unbecoming a medical practitioner and that conduct reflected adversely on his fitness to practise medicine.

The charge particularised the allegations against Professor Frizelle as follows:

1. He failed to communicate with his patient in a sensitive and respectful manner.
2. He removed a seton from his patient without first obtaining her informed consent to that procedure.
3. He failed to offer his patient pain relief when he knew or ought to have known she was experiencing significant pain.
4. Having removed a seton from his patient he failed to adequately explain to her:

1. that he had done so; and/or
2. the consequences or care following removal.

Background: 

The patient was first referred to Professor Frizelle in 1996, and he diagnosed that she had Crohns disease. After this diagnosis the patient was seen by Professor Frizelle and other doctors on a number of occasions between 1996 and 1999.

On 25 June 1999 Professor Frizelle performed a procedure on the patient under general anaesthetic. On this occasion Professor Frizelle inserted a seton - a drainage tube which is inserted to assist with the treatment of a fistula with sepsis. The seton was sutured into place with a slip knot. The technique employed by Professor Frizelle when inserting the seton required the suture to be slowly tightened over a period of time allowing the seton to slowly cut through the sphincter muscle. The tightening of the seton suture was carried out uneventfully on 19 July and 30 August 1999.

On 2 September 1999 the patient telephoned Professor Frizelle's Registrar and advised she was in significant discomfort as a result of the tightening of the suture on 30 August. The patient contacted the Registrar again on 3 September. Her pain was such she could hardly walk. It was arranged the patient would attend Christchurch Hospital the following morning to see the Registrar.

The patient explained to the Registrar that the seton was very painful. She asked him to be gentle. The Registrar then examined the patient and attempted to cut the suture with a scalpel. This caused the patient considerable pain and she cried out. The Registrar stopped his efforts to enable the patient to take some codeine. A few minutes later the Registrar made another attempt to cut the suture. The process was so painful the patient screamed. It was accepted that the patient was in such pain that she "grabbed a cord on the wall, was crying with pain, and felt she was going to vomit". At this stage the Registrar stopped the procedure and asked a nurse to get some morphine which he proposed to administer intravenously. He also called for nitrous oxide.

Soon after the nurse left Professor Frizelle entered the room. He asked if he could examine the suture. The patient asked Professor Frizelle to be gentle with her.

When Professor Frizelle examined the patient he pulled on the suture which caused the patient to scream with pain. He told the patient to stop screaming. The patient said he was blunt and unsympathetic.

Professor Frizelle then asked the Registrar to get some scissors, as he said that administering a local anaesthetic would hurt as much as cutting the suture. Professor Frizelle then told the patient to raise her buttocks. He provided no further explanation of what he was going to do, or what options were available. He did not offer the patient any pain relief.

Professor Frizelle then proceeded to remove the seton. The patient had assumed the suture was going to be loosened. She did not appreciate the seton had been removed until the following day when she took a shower.

The process of removing the seton caused the patient considerable pain and anguish. Subsequently the patient requested a transfer of her care to another surgeon.

Professor Frizelle explained that when he saw the patient she was screaming at the top of her voice. He said the patient was distressed and that rapid action was necessary. He believed the seton was the cause of the patient's pain and accordingly he thought it appropriate to remove the seton as quickly as possible.

Professor Frizelle accepted he did not explain matters in any detail and that he may have been brisk and firm with the patient. He thought he had made it clear he intended to remove the seton. He also accepted he had been annoyed with the Registrar for seeing the patient without his knowledge and that his displeasure with the Registrar may have been conveyed to the patient.

Professor Frizelle accepted he had acted inappropriately. He wrote a letter of apology on 3 May 2000 and again apologised to the patient at the hearing before the Tribunal.

Professor Frizelle has accepted most of the factual evidence upon which the charge was based. However, he contested the suggestion that his acts and omissions amounted to conduct unbecoming a medical practitioner.

Finding:

The Tribunal found Professor Frizelle guilty of conduct unbecoming a medical practitioner and that conduct reflected adversely on his fitness to practise medicine.

When considering the first particular the Tribunal was unanimously of the view that Professor Frizelle's lack of sensitivity and respect for the patient on this occasion met the threshold of conduct unbecoming a medical practitioner and that his conduct reflected adversely on his fitness to practise medicine.

Professor Frizelle's explanation for failing to communicate in an appropriate and sensitive manner with the patient was that he wanted to move with "haste" to address the patient's situation. The Tribunal accepted Professor Frizelle's motives were genuine but also recorded that the situation which Professor Frizelle encountered was not an emergency. The patient was clearly in considerable pain and the situation required a calm and sensitive approach.

When considering the second particular the Tribunal was satisfied that Professor Frizelle elected to remove the seton without providing the patient with an explanation as to:

• What he was proposing to do;
• What options were available; and
• What the likely consequences of his treatment were.

The Tribunal was in no doubt that an ordinary patient, in the patient's circumstances would expect to be told that it was the doctor's intention to remove the seton, as opposed to cut or release pressure on the suture holding the seton in place. An ordinary patient would expect to be told the options available and what the consequences were of removing the seton.

In addition to failing to inform the patient in accordance with the standard expected of a reasonable patient, Professor Frizelle failed to take account of the patient's personal circumstances and desire to understand what was happening. The Tribunal considered the fact the patient was unaware the seton had been removed until the following day highlighted the inadequacy of Professor Frizelle's explanations to the patient.

The Tribunal was of the view Professor Frizelle failed to:

• Properly inform the patient of his proposed method of treatment, the consequences of that treatment and the options available; and
• Obtain the patient's consent to the removal of the seton.

The Tribunal was satisfied Professor Frizelle's failures as alleged in the second particular constituted conduct unbecoming a medical practitioner and reflected adversely on his fitness to practise medicine.

When considering the third particular the Tribunal was satisfied Professor Frizelle knew the patient was in considerable pain. At the time he removed the seton Professor Frizelle did not know his Registrar had called for morphine which he intended to administer intravenously. The Registrar had also called for nitrous oxide. The circumstances Professor Frizelle faced necessitated he not remove the seton without providing the patient with the option of sedation or strong analgesia. The Tribunal was of the view Professor Frizelle's acknowledged shortcomings constituted conduct unbecoming a medical practitioner which reflected adversely on his fitness to practise medicine.

When considering the fourth particular the Tribunal was left in no doubt Professor Frizelle failed to communicate to the patient he had removed the seton and the consequences of his having removed the seton. The Tribunal was of the view that Professor Frizelle's conduct as alleged in this particular constituted conduct unbecoming a medical practitioner which reflected adversely on his fitness to practise medicine.

Penalty:

The Tribunal ordered Professor Frizelle be censured, fined $4,000 and pay costs of $9,483.13.

The Tribunal recorded that under normal circumstances Professor Frizelle could expect a fine in the vicinity of $7,000-$10,000 in relation to the findings made against him. However, in this instance the Tribunal discounted the fine it would normally impose due to its concern that the events in question occurred more than three years before the hearing. In addition, Professor Frizelle had on two occasions proffered a full apology to the complainant, and also he had a co-operative approach to the hearing of the charge against him.

The Tribunal further ordered publication of its orders in the New Zealand Medical Journal.