Health Practitioners Disciplinary Tribunal, 958/Med17/396D, (16 March 2018)
The Director filed a charge against a consultant gynaecologist and obstetrician, Dr Nasser Shehata, in the Health Practitioners Disciplinary Tribunal (“the Tribunal”) concerning his decision to insert a Mirena (an intra-uterine contraceptive device (IUD)) into his patient when she had expressly declined that intervention and he did not have her informed consent to do so.
In 2015 Ms E consulted her GP regarding post-coital bleeding and was subsequently referred to Dr Shehata. At a consultation in March 2015, a diagnostic hysteroscopy, dilatation and curettage, an endometrial biopsy, and insertion of a Mirena were recommended. Ms E gave evidence that she told Dr Shehata that she had had an IUD previously and, while she had not had any problems with it, she did not want another one. A consent form for surgery was subsequently signed, which included “… + Mirena insertion”.
However, on the day of surgery (May 2015), Ms E deleted from the consent form reference to the Mirena. Dr Shehata acknowledged that Ms E informed him that day that she did not want the Mirena, even when he advised her that what was then proposed would not assist with her diagnosed menorrhagia (heavy menstrual bleeding) and iron deficiency. Ms E’s elective surgery proceeded without incident. At Ms E’s postoperative follow-up in July 2015, Dr Shehata erroneously told her that he had fitted her with a Mirena. After Ms E expressed concern that this would have been contrary to her instructions, Dr Shehata checked his notes and recalled that Ms E had changed her mind on the day. Ms E disputed this and said that she had never wanted a Mirena. Other future options for management of Ms E’s menorrhagia were then discussed, and Ms E said that she would return to consult Dr Shehata if she elected to pursue treatment. Ms E ultimately elected to proceed with a Novasure endometrial ablation, and this was arranged by email between Ms E and Dr Shehata’s surgery. No face-to-face consultations were had from July 2015 to the date of Ms E’s surgery (December 2015).
Ms E signed the consent form for the endometrial ablation on the day of her surgery. No consent was provided for insertion of a Mirena. When Dr Shehata came to perform the ablation he experienced difficulty and abandoned the procedure. He considered that “the only remaining valid option other than waking [Ms E] up and doing nothing was to insert a Mirena”. Dr Shehata said that before inserting the Mirena he “stated loudly in theatre that although [Ms E] might not like the idea of a Mirena it is the only valid option now to treat her bleeding and I will go and explain to her in the recovery room that this will be a temporary measure until we explore further options”. Dr Shehata inserted the Mirena. When Ms E was advised that a Mirena had been inserted, she was angry and distressed. Consent was given for the removal of the Mirena, and Dr Shehata did so accordingly. In his clinical notes, Dr Shehata acknowledged that he had not obtained Ms E’s consent for the Mirena insertion, and that he knew she had declined that option previously. He later reiterated this in a letter to Ms E’s subsequent gynaecologist.
The charge before the Tribunal included two particulars. The first alleged that Dr Shehata inserted the Mirena without Ms E’s informed consent. The first particular was admitted to by Dr Shehata, and he accepted that this amounted to professional misconduct. The Tribunal had no hesitation in finding the first particular of the charge established as misconduct, being negligence and conduct that had brought discredit to the profession. The second particular alleged that Dr Shehata had inserted the Mirena contrary to what he knew, or ought to have known, of Ms E’s wish not to have a Mirena inserted. Dr Shehata defended the second particular.
The Tribunal found the second particular established, and specifically found that Dr Shehata knew of Ms E’s wish not to have a Mirena inserted. The Tribunal concluded that there was no confusion or opportunity for confusion about what Ms E wanted on the day of surgery. The Tribunal found that the conduct established in the second particular amounted to malpractice and negligence, and had brought discredit to the profession. In concluding that Dr Shehata’s conduct warranted disciplinary sanction, the Tribunal confirmed that all patients are entitled to give informed consent, to have proper information on which to base this, and to decline to give consent.
The Tribunal found the evidence to be clear that Dr Shehata knew that Ms E did not want to have the Mirena, but that he had proceeded with the insertion of it under a patronising and paternalistic belief that it would be in her best interests.
The Tribunal regarded this case as a significant breach of standards. The Tribunal indicated that a message needed to be sent to Dr Shehata and the wider profession that the conduct to which the charge referred was serious and reflected outdated perceptions. The Tribunal concluded that a short period of suspension (three months) was inevitable and was the only way for Dr Shehata to understand the gravity of what had occurred and his attitudes. The Tribunal also placed conditions on Dr Shehata’s practice, including three months of supervision. The Tribunal censured Dr Shehata and ordered him to pay a fine of $2,500. Dr Shehata was declined an order for permanent name suppression.
The Tribunal’s decision can be found at https://www.hpdt.org.nz/Charge-Details?file=Med17/396D
Dr Shehata unsuccessfully appealed the Tribunal’s penalty decision to the High Court with respect to the order that he be suspended from practice for three months (Shehata v Director of Proceedings  NZHC 615 (28 March 2019)). The High Court upheld the decision and reasoning of the Tribunal and confirmed that Dr Shehata’s lack of insight and attitude inevitably led to a short period of suspension, which the High Court noted was fair, reasonable, and appropriate in the circumstances.
The High Court decision can be found at http://www.nzlii.org/nz/cases/NZHC/2019/615.html