Findings

Charge Characteristics

Additional Orders

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Precis

Charge:  

The Director of Proceedings, charged Dr O’Flynn, while in his role as Clinical Director for Southland District Health Board Mental Health Services which was providing clinical services to Mark Burton between 10 February 2001 and 30 March 2001, acted in such a way that amounted to professional misconduct in particular he:

1. Between 10 February 2001 and 30 March 2001 failed to ensure that Dr Peter Fisher, Medical Officer Special Scale, the clinician responsible for Mark Burton’s care, was adequately supervised and/or
2. Between 1 May 2000 and 30 March 2001 failed to adequately assess Dr Peter Fisher’s experience and/or competence, and thereby determine the scope of his unsupervised practice to ensure that he met appropriate medical standards of care.

The conduct alleged in particulars (1) to (2) either separately or cumulatively amounted to professional misconduct.

Background: 

Dr O’Flynn was appointed as Clinical Director of Southern Health’s Mental Health Services and Director of Area Mental Health Services (Area Director) for Southland with effect from 1 July 1998.

In October 2000 Dr Peter Fisher was employed as a Medical Officer Special Scale (MOSS) in the Psychiatric Department of Southland Hospital, Dr Fisher had previously been employed by Southern Health in the period 1992 to 1999. He had also been engaged as a locum MOSS for two weeks in May 2000.

In February 2001 Mark Burton (Mark) was 19 years old. He had been living with his parents and siblings in Queenstown. He had been diagnosed as having schizophrenia with a history of alcohol and cannabis abuse. On 10 February 2001 Mark was admitted as a voluntary patient to Southland Hospital.

On 22 March 2001 Mark was placed on a week’s trial leave from Southland Hospital and was discharged on 30 March 2001. During the period 10 February 2001 to 30 March 2001 Mark was under the care and management of Dr Fisher.

During the early hours of 31 March 2001, Mark, having travelled from Invercargill to his parents’ home at Queenstown, attacked and killed his mother, Mrs Paddy Burton. Mark was subsequently arrested and charged with the murder of his mother. Following a trial before a Judge and Jury in the High Court in August 2001, Mark was found not guilty of murder by reason of insanity. He was then committed as a special patient under the Criminal Justice Act 1985. The Tribunal found Dr Fisher guilty of professional misconduct.

Dr O’Flynn is a qualified and registered clinical psychiatrist with over twenty years as a clinical psychiatrist both overseas and in New Zealand.

Southland Mental Health Services faced serious shortages of staff and resources. The Tribunal was satisfied on the evidence Dr O’Flynn was undertaking the work of the equivalent of 2.3 full time positions. He was performing as a full time child and adolescent psychiatrist which equated to one full time position; as an inpatient and forensic psychiatrist which equated to a further full time position; and as Clinical Director and Area Director which equated to .3 of a full time position.

On becoming Clinical Director, Dr O’Flynn held and led weekly meetings with the medical staff of whom Dr Fisher was one. Dr O’Flynn said that the purpose of these meetings was peer group support and supervision where both clinical and service issues were discussed. Doctors presented a variety of issues and the meetings were generally a mutual debriefing session.

There was also a weekly review or team review meeting at the ward round in the in-patient unit at which both Dr O’Flynn and Dr Fisher attended. These were multi-disciplinary meetings including psychiatrists, MOSSs, nurses, social workers, the needs assessor, pharmacists and the community workers. The meetings involved a review of the patients in the hospital, their care and treatment planning.

Medical Staff/Team Directorate meetings were held monthly. Dr O’Flynn attended as Clinical Director together with the senior medical staff.

In addition to those already mentioned, other meetings included:

1. Monthly Clinical Directors’ meetings;
2. The Mental Health Directorate meetings at which Dr O’Flynn attended with the Patient Services Manager (Ms Kitson);
3. OCB Meetings (Ongoing Challenging Behaviour) at which Dr O’Flynn attended;
4. There were also monthly incident report meetings where Dr O’Flynn reviewed all incident reports. Dr O’Flynn said no incident forms were ever received about Dr Fisher.
5. There were also almost daily patient service manager meetings often combined with other people with whom he did business, such as Human Resources personnel.
6. Southern Behaviour and Support meetings.

Finding:

The Tribunal found Dr O’Flynn not guilty of professional misconduct.

The Tribunal considered particular 1 was not established.

The Tribunal was satisfied that at the material time in 2000-2001 there was no statutory or regulatory requirement for supervision of Dr Fisher. Although Dr Fisher held general registration, he was exempt by the Medical Council from a requirement of general oversight. There was no uniformity among the witnesses of what was required of a Clinical Director regarding supervision of senior medical staff within the service for which the Clinical Director is responsible.

Dr O’Flynn had a wide range of responsibilities which he had to discharge within the time and resources available to him. The Tribunal was satisfied he set his priorities in a thoroughly responsible manner and allocated his work and that of his staff accordingly.

In the Tribunal’s view, the appropriate level for Dr O’Flynn as Clinical Director in February/March 2001 at Southland Mental Health Services was to use multiple methods to allow him an overview of the quality of the service provided by the clinicians within it. One-to-one supervision was neither practicable nor realistic.

The Tribunal considered that it was easy with hindsight to criticise the failings which Dr Fisher had and attribute blame to those who were ultimately responsible for the provision of mental health services. However, Dr O’Flynn had no reason to believe Dr Fisher had the shortcomings which were discovered only after Dr A supervised Dr Fisher intensively following the discovery of the serious errors in his treatment of Mark Burton. In the absence of any specific knowledge as to Dr Fisher’s shortcomings as a practitioner, Dr O’Flynn was entitled to expect Dr Fisher to conduct himself to a standard commensurate with his qualifications and experience as a senior member of the medical staff.

The Tribunal considered particular 2 was not established.

The Tribunal considered that there was a substantial failure on the part of Southern Health’s recruitment processes at the time of Dr Fisher’s employment. The Tribunal accepted that Dr O’Flynn’s involvement in the recruitment of Dr Fisher was minimal or peripheral.

Dr O’Flynn did not oppose Dr Fisher’s employment. He was aware that Dr Fisher had been employed previously for five years and was being re-employed with the support of other senior staff. The Tribunal did not accept that Dr O’Flynn had a duty, in those circumstances, to conduct additional investigations.