Federal Court of Australia

Pathmanathan v St John of God Healthcare Inc (No 3) [2023] FCA 628

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s interlocutory application filed 23 May 2023 is dismissed.

2.    The proceeding is dismissed.

3.    Any application for consequential orders, including costs, is to be made in writing with supporting submissions strictly limited to no more than five pages, which submissions are to be filed and served within 10 business days of the publication of these reasons, with a right of reply in writing strictly limited to no more than three pages within five business days thereafter.

4.    Subject to any further order of the Court, all consequential orders including costs will be determined on the papers.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MCELWAINE J:

1    Dr Ajintha Pathmanathan (the applicant) is a highly intelligent, well qualified, confident and articulate individual of Sri Lankan Tamil ethnicity. Her family migrated to Australia in 1985 when she was a child and settled in Perth, Western Australia. She excelled at school, achieving grades in the top 0.1% of all school leavers in her final year and was admitted to the medical school at the University of Western Australia. She completed her medical degree in 2001, graduating with the award of an MBBS. In 2005, she commenced specialist anaesthesia training at the Oxford University NHS Trust in the United Kingdom. A family event caused her to return to Australia, and she completed her training in Sydney.

2    In 2010, Dr Pathmanathan completed a sub-specialty fellowship in aeromedical medicine and in 2011, a sub-specialty fellowship in cardiac anaesthesia at the Royal Brompton NHS Trust in the United Kingdom, where she held medical registration. In 2011, she was admitted as a fellow of the Australian and New Zealand College of Anaesthetists (ANZCA). In 2016 she was awarded, by the University of Sydney, a Master’s degree in International Public Health. She has since completed her course for a Master’s degree in Health and Medical Law with the University of Melbourne. In 2012, Dr Pathmanathan commenced practice as a specialist anaesthetist in Perth. She has particular expertise in bariatric anaesthesia.

3    As a consultant Dr Pathmanathan sought and, on 23 February 2012, was granted accreditation rights at the St John of God Hospital, Subiaco (hospital) which is operated by the respondent. In general terms accreditation at the hospital confers authority to provide health care services within approved fields of accreditation. Dr Pathmanathan was accredited as a consultant anaesthetist. She worked with various surgical teams. Her practice experienced success and growth.

4    Dr Pathmanathan now describes herself, somewhat self-deprecatingly, as a “forcefully retired specialist anaesthetist/anaesthesiologist” which on her case was caused by wrongful and unlawful decision-making by the respondent in late 2014 which resulted in the suspension of her accreditation right, a conduct referral to the Australian Health Practitioner Regulation Agency (AHPRA), loss of her livelihood and self-esteem and which overall has caused her much emotional distress and suffering.

5    In late 2017, Dr Pathmanathan made a complaint to the Australian Human Rights Commission (the Commission) alleging that the respondent had engaged in unlawful discriminatory conduct contrary to the Age Discrimination Act 2004 (Cth), the Racial Discrimination Act 1975 (Cth) and the Sex Discrimination Act 1984 (Cth). A delegate of the President of the Commission terminated those complaints on 28 February 2018 pursuant to ss 46PF(1)(b) and 46PH(1)(b) of the Australian Human Rights Commission Act 1986 (Cth) (Commission Act). The effect of s 46PO(3A) of the Commission Act is that Dr Pathmanathan required leave to commence a proceeding in this Court alleging unlawful discrimination against the respondent.

6    Dr Pathmanathan commenced this proceeding on 3 July 2018, beyond the 60 day time limit set by s 46PO(2) of the Commission Act and without leave. She then sought leave to commence two proceedings, one against the respondent and another (the subject of a separate complaint) against AHPRA. On 5 September 2019, Steward J granted an extension of time and leave to bring a proceeding against the respondent but dismissed the application for leave to bring a proceeding against AHPRA: Pathmanathan v St John of God Healthcare Inc [2019] FCA 1460 (leave judgment). There is another proceeding that Dr Pathmanathan unsuccessfully sought to pursue. On 6 February 2020, Steward J summarily dismissed her proceeding commenced against the operator of the Mount Hospital in Perth in which Dr Pathmanathan contended that, in September 2015, her accreditation was unlawfully terminated on the grounds of disability, sex, race or age discrimination: Pathmanathan v Healthscope Operations Pty Ltd [2020] FCA 65 (Healthscope).

7    Dr Pathmanathan is a self-represented litigant. In this proceeding she has demonstrated very high level intellectual achievement, communication skills and organisational capacity to marshal a vast amount of documentary evidence and to present it in the form of many affidavits. A significant amount of that material is not in admissible form, but this does not detract from the very considerable effort that Dr Pathmanathan has exerted in the preparation of her case. She displayed civility and courtesy in the conduct of the trial where evidence was heard over a period of 10 days from 17 witnesses, including from her. In all, 13 witnesses were required for cross-examination. The trial was obviously emotional and stressful for Dr Pathmanathan. The central event concerns the conduct of Dr Pathmanathan who, on 28 October 2014, received an iron infusion whilst an anaesthetised patient of hers was undergoing bariatric surgery at the hospital. This incident led to a decision by the respondent’s Chief Executive Officer Dr Henderson, communicated to her on 11 November 2014, to forthwith suspend her accreditation, pending satisfactory explanation of her conduct. Thereafter two notifications were made to AHPRA, one by Tottle Partners Lawyers (Tottle Partners), then acting for Dr Pathmanathan and the other by the respondent, that initially resulted in the Western Australia Immediate Action Committee of the Medical Board of Australia (Immediate Action Committee and the Medical Board) deciding on 15 December 2014 to propose to take immediate action in relation to Dr Pathmanathan’s registration by imposing a condition on her registration that she must not practice as a medical practitioner until the outcome of a satisfactory health assessment and further decision by the Medical Board. The Immediate Action Committee further resolved to require Dr Pathmanathan to undergo that assessment and invited submissions about the proposed action by 18 December 2014.

8    Submissions, both written and oral, were made to the Immediate Action Committee, AHPRA and the Medical Board over an extended period. Dr Pathmanathan submitted to a psychological assessment that concluded she was not suffering a mental impairment, although she did display narcissistic personality traits. Certain supervisory conditions were ultimately imposed on her registration, which AHPRA publicly notified.

9    On 21 October 2015, the Western Australian Board of the Medical Board of Australia (Board) considered an application by Dr Pathmanathan to remove those restrictions. It decided to modify the restrictions by removing some of them. On 6 November 2015, Dr Henderson advised Dr Pathmanathan that, despite the decision of the Medical Board, he was not confident that her skill levels were sufficient to permit her to practice as an independent specialist at the hospital. In the event of removal of all restrictions on her practice, he noted that she may reapply for accreditation.

10    In the events as they occurred, Dr Pathmanathan’s accreditation expired on 20 February 2015. On 9 December 2015, the Medical Board decided to remove the remaining conditions upon her registration “because the Board acknowledged that the requirement for supervision has impacted upon your ability to sustain full time work and considers that there has been a material change in your circumstances in this regard.”

11    Despite removal of those conditions, the applicant’s case is that she has been unable to obtain full-time work as a consultant anaesthetist in Australia, or elsewhere, that her professional reputation has been ruined and that in consequence she should receive an award of very substantial damages. Dr Pathmanathan calculates her pure economic loss claim at approximately $120 million.

12    Dr Pathmanathan in her pleadings, comprising an amended statement of claim filed 13 May 2022 (54 pages) and a reply filed 4 October 2022 (341 pages) asserts a large number of disparate causes of action, some of which are very difficult to understand. In summary, the claims embrace unlawful discrimination on the basis of race, sex, age and imputed disability, negligence, fraud, fraudulent misrepresentation, intimidation, unlawful interference with trade or business relations, tortious conspiracy, breach of trust, breach of confidence, constructive trust, invasion of privacy, defamation, breach of contract, torture and “equity in justice”. The respondent did not pursue an application to strike out the pleadings, in whole or in part, as failing to disclose a reasonable cause of action. Mindful of the obligation at s 46PR of the Commission Act to conduct this proceeding without being bound by technicalities or legal forms, I have proceeded by attempting to ascertain the substance of the various complaints made by Dr Pathmanathan, although as observed by Robertson J in Maiocchi v Royal Australian and New Zealand College of Psychiatrists [2014] FCA 301 at [8], this provision does not dispense with the obligation to adequately inform a respondent of the case that must be met. In this case the pleadings must be read with the very extensive number of affidavits relied upon by Dr Pathmanathan and the documents contained in the agreed court book of 4,615 pages.

13    For the detailed reasons that follow, I have concluded that the claim must be dismissed. In material respects, I reject the evidence of Dr Pathmanathan where inconsistent with the evidence of other witnesses and contemporaneous documents, some of which were authored by her. I do not find that Dr Pathmanathan deliberately gave false evidence before me. Rather, I am prepared to accept that on material differences, her recollection of events is the result of reconstruction rather than recollection and, to adopt a label that Dr Pathmanathan relied on in submissions to me (as to why I should reject certain evidence given by witnesses for the respondent), in metacognition research it is accepted that false memory can be created over time due to false attribution error. As put by Dr Pathmanathan: “So when you feel that somebody else has done the wrong, and so you attributed all the error to the other person instead of yourself.” Dr Pathmanathan assented to my proposition that one might reach the same conclusion about aspects of her evidence (indeed the evidence of any person) and emphasised that contemporaneous documents tend to be more reliable.

14    What is clear is that Dr Pathmanathan has spent many years studying, sifting, sorting and analysing the evidence that she relies upon in order to found her overarching contention that her career was ruined by a group of white senior male doctors who were determined to target her as a progressive, young, female doctor of Sri Lankan ethnicity who had managed, despite these attributes, to break through “the glass ceiling” of the medical profession in Perth. That case theory finds no support in any of the evidence before me. To an extent, some of the allegations that Dr Pathmanathan makes against individuals in this case are scandalous.

The conduct of the trial

15    Despite that the relevant events occurred in Perth and most of the witnesses reside there, Dr Pathmanathan commenced this proceeding in the Victorian registry of the Court. Eventually it was agreed that the trial should proceed in Perth.

16    The evidence comprised affidavits and a court book. Dr Pathmanathan relies on a total of 24 affidavits made by her between 25 October 2018 and 20 February 2023. A considerable amount of material in those affidavits is argumentative, comprises submissions or is otherwise inadmissible for various reasons. Counsel for the respondent, Mr Millar, adopted a pragmatically sensible attitude and did not engage in the tedious process of identifying individual objectionable paragraphs or sentences. Rather, in the interests of efficiency, he was content for all of the applicant’s affidavits to be read without objection, reserving the right to submit at a later stage that certain material was irrelevant or of little or no weight.

17    Dr Pathmanathan also filed affidavits from Dr Donald Kane, Dr Michael Kerr, David Cruse, Judith Corbett, Dr Angella Figliomeni (her sister), Professor Ashish Sinha, Professor Jan Mulier, Suresh Lakshmanan, Dr Steve Watts, Dr Nick Ford and Dr Carol Warfield. During the trial and, on the application of the respondent, I ruled as inadmissible or Dr Pathmanathan did not press the affidavits of Dr Kane, Dr Kerr (in part), Mr Cruse, Dr Figliomeni (in part), Mr Lakshmanan, Dr Ford and Dr Warfield. Ultimately, Mr Millar did not require Dr Figliomeni, Professor Sinha or Professor Mulier for cross-examination and their affidavits were read into evidence.

18    I record that the evidence of Mr Lakshmanan presented particular difficulty for the applicant. He is an accountant by education, training and experience. Dr Pathmanathan believed that his report would be admitted to establish her past and future economic loss claims. In fundamental respects his report failed to comply with the requirements of s 79 of the Evidence Act 1995 (Cth). Moreover, his opinion is expressed in the form of an academic analysis as to the principles that one might apply in assessing damages for past and future economic loss. He was not briefed with a statement of facts to form the basis of his assumptions, his analysis did not proceed by reference to the past historic income earned by Dr Pathmanathan in the conduct of her practice, and nor did he undertake calculations in order to derive a range of future economic loss, discounted to present day values. My rejection of the entirety of his evidence left the applicant without any expert evidence to establish her economic loss claim.

19    I considered it part of my duty to afford procedural advice to Dr Pathmanathan as a self-represented litigant and as part of my obligation to conduct the trial conformably with the requirement of s 46PR of the Commission Act that I should advise her that there were, at least, two options open to her in consequence. One, to seek an adjournment of the trial and the other to make, albeit at a very late stage, an application to divide the issues of liability and quantum as separate questions pursuant to r 30.01 of the Federal Court Rules 2011 (Cth) (Rules). Dr Pathmanathan made an application for the latter, which Mr Millar opposed. After hearing detailed argument I provided ex tempore reasons on 14 March 2023 and made an order to separate these issues. I adjourned to a date to be fixed the question of damages, if it arises. The trial proceeded limited to the question of liability. The primary reason which informed that exercise of my discretion is that Dr Pathmanathan genuinely did not understand what was required of Mr Lakshmanan in order to produce a report in admissible form on the question of damages. I made it plain that but for the fact that she is a self-represented litigant, I would not have exercised my discretion in her favour.

20    Shortly prior to the commencement of the trial at a case management hearing, Dr Pathmanathan applied for leave to issue 41 subpoenas addressed to individuals to attend and give evidence at the trial and one to the respondent to produce documents. I refused those applications, save for three subpoenas addressed to Dr David Knox, Professor Constantine Michael, Dr Michael Levitt and to the respondent, respectively. A matter arose during the evidence of Dr Levitt which required a separate evidentiary ruling. Without his knowledge at the time, Dr Pathmanathan electronically recorded a discussion that she had with him on 19 January 2017. When he subsequently became aware of this recording, he did not consent to its use nor to a transcript made from the recording which Dr Pathmanathan attached to one of her affidavits. Mr Millar submitted that I should reject the transcript as illegally obtained evidence contrary to s 5 of the Surveillance Devices Act 1998 (WA) and pursuant to s 138 of the Evidence Act. After hearing argument on the point, I ruled this material inadmissible and for the reasons given ex tempore on 16 March 2023.

21    The respondent relies on various documents in the court book together with evidence from Karen Morris, Dr Henderson, Michelle McCorkill, Dr Janet Barry, Larissa Johnstone, Mr Harsha Chandraratna, Dr Joseph Pracilio and Dr Ralph Longhorn.

22    At the commencement of the trial I directed that, despite that it was intended that evidence-in-chief would be given by adoption of affidavits, I would be assisted if the evidence of each witness relevant to disputed conversations and events, be led viva voce. This was agreed. Proceeding in that way significantly assisted my assessment of each witness.

Abbreviated chronology

23    To assist in comprehension of these reasons I set out a chronology of the key events, though there is considerable dispute about what was said during various conversations and whether certain events as alleged by the respondent occurred in the manner alleged.

24    Many other events were the subject of extensive evidence relied on by Dr Pathmanathan. I limit my findings of fact to those necessary to address the material aspects of Dr Pathmanathan’s claim and the respondent’s defence.

Structure of the claims

25    It is not a productive exercise to set out portions of Dr Pathmanathan’s pleaded claims or to explain their protean development in the form of the overly detailed, and in part impenetrable, reply comprising a mixture of hundreds of pages of argumentative contentions, submissions and evidence. As finally resolved and expressed in closing submissions by Dr Pathmanathan her claims are as follows.

Unlawful discrimination claims

26    First, the basal claims of unlawful discriminatory conduct engaged in by the respondent contrary to the Racial Discrimination Act, the Sex Discrimination Act, the Age Discrimination Act and the Disability Discrimination Act 1992 (Cth). Dr Pathmanathan presses a somewhat novel claim of discrimination on the basis of “the intersectionality of protected attributes violating her human rights in the sphere of economic and social life, as in the discrimination statutes.” How that is put is explained by Dr Pathmanathan in her closing submission:

The applicant has an intersectionality of protected attributes relevant to race, age, sex, and imputed disability discrimination. Scientific and corporate research evidence shows, those with intersection of race, age and sex suffer compounded or heightened discrimination particularly at the higher tiers of leadership.

27    Delving a little deeper into that claim, Dr Pathmanathan refers me to the Center for Intersectional Justice, a non-profit organisation founded in Berlin in 2017. According to the website homepage of that organisation it:

[I]s dedicated to advancing equality and justice for all by combating intersecting forms of structural inequality and discrimination in Europe. We envision a world free of systemic oppression in which each individual has access to resources, voice, power and safety. Such a world will only emerge if structural institutional and historical barriers that have led to marginalisation, invisibilization and lack of access and opportunity for minority groups … are addressed.

28    Dr Pathmanathan emphasises the definition of intersectionality promulgated by the Center:

The concept of intersectionality describes the ways in which systems of inequality based on gender, race, ethnicity, sexual orientation, gender identity, disability, class and other forms of discrimination “intersect” to create unique dynamics and effects. For example, when a Muslim woman wearing the Hijab is being discriminated, [sic] it would be impossible to disassociate her female* from her Muslim identity and to isolate the dimension(s) causing her discrimination.

All forms of inequality are mutually reinforcing and must therefore be analysed and addressed simultaneously to prevent one form of inequality from reinforcing another. For example, tackling the gender pay gap alone – without including other dimensions such as race, socio-economic status and immigration status – would likely reinforce inequalities among women.

29    Dr Pathmanathan did not refer me to any case where this concept has been applied in addressing discrimination claims brought pursuant to any of the statutes upon which she relies. Nonetheless, I note the existence of a considerable body of academic literature where the concept finds discussion, for example: Goldblatt, B “Intersectionality in International Anti-discrimination Law: Addressing Poverty in its Complexity” (2015) 21(1) Australian Journal of Human Rights 47. My research has failed to turn up any case that has considered this issue pursuant to the discrimination statutes relied on by Dr Pathmanathan.

30    I do not find that the concept is of no assistance in understanding how Dr Pathmanathan frames her discrimination claims, though ultimately I am bound to proceed in accordance with the provisions of each statute and the settled judicial interpretation of the principles to be applied.

31    This is not to say that Dr Pathmanathan relies only on her intersectionality argument. It is clearly in addition to her apparently more straightforward claims of race, sex, age and imputed disability discrimination. Those claims are difficult to disentangle from an array of contentions that begin with the overarching claim that the respondent “wields significant power and influence in the healthcare, legal and political communities” in Western Australia. Dr Pathmanathan repeatedly references this as the “circuit of power” comprising senior accredited medical practitioners (invariably white males) “anointed with powerful roles and titles” holding various positions in third party organisations thereby enabling the respondent to “effect influence and inducement (implicit or explicit) through the circuit”. Amongst those actors, Dr Pathmanathan names several witnesses in this proceeding: Professor Michael, Dr Levitt, Dr Henderson (the CEO of the respondent at the time), Dr Pracilio and Dr Longhorn. At the outset I should observe that there is no basis in the evidence for those claims against these medical practitioners and others whom I have chosen not to name as they did not give evidence and could not rebut the assertions of Dr Pathmanathan. These untenable contentions should never have been made and are scandalous for detailed reasons that I will later explain.

32    Returning to Dr Pathmanathan’s narrative, the unlawful discrimination commenced in mid-2013, when she asserts that her work with education committees was interfered with and malicious rumours began to circulate about her in an endeavour, so it is said, to induce others to cease working with her, so that by April 2014 she was requested to leave the Perth Anaesthesia Group by Dr Craig Schwab: which she did of her own accord to practice independently. When I inquired of Dr Pathmanathan in her closing address how this conduct was related to the respondent, Dr Pathmanathan asserted without any evidence that Dr Schwab was induced to act by unnamed senior doctors of the respondent. This is another example of serious allegations made against a plethora of individuals without any basis in fact. There are many others, some of which I later address in these reasons.

33    Thus in setting out what are the allegations of unlawful discriminatory conduct against the respondent, I focus only on the four key matters of complaint, two of which led to the suspension decision taken by Dr Henderson on 10 November 2014 and two more of which explain subsequent decision-making by the respondent.

34    The first matter relates to an alleged incident on 12 November 2013, being the patient in the corridor incident, and is the subject of an internal incident report prepared the next day. The reporting system is known as RiskPro. In substance it was reported that at the conclusion of a surgical procedure and when the patient was being transferred to the ICU, Dr Pathmanathan stopped in the corridor to return a quantity of drugs to the Post Anaesthesia Care Unit (PACU) and subsequently in the vicinity of the theatre reception area the following occurred (without correcting for spelling or grammar):

As we were walking through theatre reception area I thought I heard Dr Pathmanathan say “maybe I should grab my clothes” I said “sorry?” She replied “no never mind”. We kept walking and I then heard her say “it will only take a minute” I turned and looked at her and she said “two secs Ill be right back, the patient is stable”. Dr Pathmanathan then quickly walked back towards the theatre reception area. I turned to the orderly (Brad) who was pulling the bed and asked “what the?” as I was surprised. He said “I think she went to get her clothes what do we do?” I said we can’t move without her and so we came to a stop in the area just before the lifts and I advised the Anaes tech (Rob) to let the lift go as the anaesthetist was not with us. Rob and I talked to the patient who said she was uncomfortable, her observations on the ICU transfer monitor remained stable. We waited there for a couple of minutes until I saw her coming and I advised the tech to call the lift and when she reached us I expressed that she was gone a long time. She replied that someone had stolen her shoes. I told the orderly that we should proceed to ICU. In the lift Dr Pathmanathan asked me about security cameras in the changerooms. I advised her that there was no cameras. I did not confront Dr Pathmanathan about her leaving us at this time as I didn’t think it appropriate over the patient and in front of other people. Once in ICU Dr Pathmanathan did her handover and I waited for the ICU nurse. Once she had handed over she asked me how we could report the theft. I said we could do so on the computer and tell shifty. She spoke to the ICU Dr again and then asked me if I would do the report. I said that we could once we got back to main theatre. Dr Pathmanathan then left ICU. On return to Main Theatre I spoke to shift coordinator who advised me that Dr Pathmanathan’s shoes were there in the office. I rang the Dr to advise her of her shoes and to see where she was so as to speak to her. She advised me that she had already left (I assume in her scrubs) and that she would come in tomorrow. There were several other people in the coordinators office so I did not feel comfortable discussing it with her on the phone. I waited until others left and then discussed the situation with the shift coordinator (Aruna Thathiah). We advised Mr Chandraratna of the situation over the phone.

35    The person reporting this incident is disclosed by name, together with the name of a witness. It is further recorded that patient safety was compromised, but the outcome was not harmful. This incident was not raised with Dr Pathmanathan until November 2014.

36    The second reported incident, being the lunch incident, is recorded as having occurred on 27 May 2014. The RiskPro in part reads:

Patient in PACU @ 1210 – hypertensive ++, desaturating, oxygen requirements increasing, erratic breathing with LMA.

Anaesthetist Ajintha Pathmanathan contacted - in tearoom - stated she needs to finish her lunch. Gave phone order for Sugammedex, Clonidine and Naloxone - all given.

1245 - Patient still not awake with all above still happening. Anaesthetist phoned in OR and pleased asked to review patient in PACU she stated she couldnt come as had another patient on table - Dr Knox in PACU and attended to patient and stated he would himself go into OR to get Dr Pathmanathan.

1300- Dr Pathmanathan attended to review. Dr Knox told her what he had done and asked how much Fentanyl was given she responded 100 and when he ? it she responded she gave another 50 but not recorded it in OR. She charted further Naloxone (given no improvement in patients condition). ABG also ordered, completed by nursing staff and reviewed by dr. Paperwork also not completed, PCA orders incomplete - not signed and wrong parameters.

1330 - another Naloxone dose given with no improvement.

1340 - paperwork finally completed after asked by PACU coord to fill in.

1346 - patient still remains unresponsive, anaesthetist informed re increasing BSL and stated she would contact ICU.

1400 - Bladder scan 720mls patient still unresponsive so unable to void.

1500- Pt reviewed by Dr for transfer to ICU

37    The person reporting the incident is disclosed by name together with the name of a witness. This incident was not raised with Dr Pathmanathan until 26 November 2014.

38    The third reported incident, being the distressed patient incident, is recorded as having occurred on 24 June 2014. The RiskPro in part reads:

Pt. RTW post OT at 1550. On arrival pt. was extremely distressed, crying loudly, clutching at stomach, holding legs up to chest.

Anaesthetist with pt. at time. Nurse asked pt why she was distressed, pt stated she was in extreme pain. PCA Fentanyl not connected. Nil analgesia given to pt by anaesthetist (no medications taken with Dr.?). Nurse checked operation record, appeared to have received minimal analgesia intraoperatively. Medical records documented similar issue with pain tolerance in previous surgery. Nurse asked anaesthetist why PCA not connected, anaesthetist asked where RMO was and departed the room. Over the duration of 1 hour, 3.2mg hydromorphone given, 225mcg clonidine and 12mg of ketamine. PCA connected by OT nurse and ICU nurse, ketamine infusion commenced. BP on arrival- 205 systolic BP (MAP >130) confirmed by manual BP, pt. tachycardic. Nil action taken by anaesthetist. Additional hydromorphone bolus’ required initially. Pt appeared to have settled, and pain decreased more than 2 hours post arrival to ICU.

39    The person reporting the incident is disclosed by name. No witness is identified. The effect on the patient is described as additional treatment, intervention and temporary harm. Patient pain is noted as having been exacerbated. The potential level of risk is stated as medium. This incident was not raised with Dr Pathmanathan until 26 November 2014.

40    The fourth, and most prominent incident the subject of the proceeding and the trial, occurred on 28 October 2014. It is the iron infusion incident. There is no dispute that Dr Pathmanathan received an iron infusion while an anaesthetised patient of hers was being operated upon by Mr Chandraratna. What is disputed are the events which led to it and, in particular, the involvement of others who, on the case of Dr Pathmanathan, were not investigated, suspended or subjected to any other disciplinary action. The RiskPro was completed by Karen Morris on 10 November 2014, well after she first reported the incident to Dr Pracilio on 30 October 2014. In part it reads:

Incident Details

When did the Incident/Hazard/Assessment/Inspection OCCUR: 28/10/2014

Incident Time: 08:00

Day of Week: Tuesday

Division: SUBIACO

Area/Department incident/hazard/assessment/inspection occurred: OPERATING SUITE

Describe Incident/Hazard/Assessment/Inspection including site of injury/exposure: (Facts only):

On Tuesday 28 October I was the anaesthetic technician in Mr Chandraratna's bariatric surgery list in Theatre 18. I was assisting Dr Pathmanathan and there was chat between the doctors about Dr P having low blood iron. I heard some of the discussion and I thought they were talking about giving Dr P an iron infusion after the list finished, in Mr C's rooms or elsewhere. I talked to Dr P about the anaphylaxis risk, and that she should have it done in a clinic where she could relax also. I went to the hospital's retail Pharmacy to collect a prescription for this purpose for Dr P. The last case of the day was a sleeve gastrectomy revision on a 100kg patient who was going to ICU following her operation. During this case Dr P cannulated herself and gave herself the iron infusion, and was attached to the set-up while using the tungsten bougie in the patient.

41    The report further records that patient safety was compromised and the potential level of risk was high. This incident was not raised with Dr Pathmanathan until late in the afternoon of 11 November 2014 when Dr Pracilio advised her of the decision made by Dr Henderson to suspend her accreditation, pending further investigation and review.

42    The central contention of Dr Pathmanathan is that the respondent has engaged in a “smokescreen” to “create the narrative to explain what had happened” initially to retrospectively justify the suspension of her accreditation rights, the report to AHPRA and the refusal of subsequent requests to remove the suspension or otherwise reinstate full accreditation rights. On her case, I should find that the respondent’s decision-making was motivated by and was taken for reasons related to her race, sex, age or imputed disability even if those reasons were not dominant or substantial reasons. Dr Pathmanathan characterises each of the allegations relied upon by the respondent as fraudulent.

43    The claim framed pursuant to the Racial Discrimination Act asserts that the respondent treated Dr Pathmanathan as “an incompetent foreign doctor” and thereby engaged in unlawful racial discrimination contrary to ss 9, 10, 11, 13, 16 and 18. Her overall contention is that the respondent’s decision-making was infused by racial prejudice, or at least included considerations of racial prejudice. The case advanced is that the whole of the treatment of Dr Pathmanathan by persons for whom the respondent is legally responsible amounted to an act involving “a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life” within the meaning of s 9(1) of the Racial Discrimination Act. By acting as it did, Dr Pathmanathan contends that the respondent denied to her rights to equality before the law within the meaning of s 10, access to places and facilities contrary to s 11, the provision of goods or services to the public or to any section of the public contrary to s 13, the publication or display or causing to be published or displayed a notice that indicates or could reasonably be understood as indicating an intention to do an act that is unlawful by reason of other provisions of the Racial Discrimination Act, contrary to s 16 and, a matter that was asserted at a late stage during the course of the trial, inciting another person to do an act that is unlawful contrary to s 17.

44    The difficulty with these various claims commences with the omission of specific pleadings of material facts that are said to establish each claim. However, in adopting a broad and beneficial approach, the case advanced by Dr Pathmanathan invites me to infer that all, or some, of the decisions taken and actions implemented by the respondent, through each of the persons for which it is legally responsible, were because of her race or ethnic origin.

45    The claims asserted pursuant to the Age Discrimination Act commence with the proposition that when practising as a consultant anaesthetist in Perth, Dr Pathmanathan was relatively young: and most certainly was much younger than each of her senior male colleagues and persons responsible for the administration of the hospital. The applicant pleads reliance on ss 14, 15, 16, 18, 20 and 28. These claims also rely on the drawing of an inference, from all of the relevant circumstances, that the applicant’s relatively young age was a reason (even if not the dominant or substantial reason) which informed decision-making by persons for whom the respondent is legally responsible and for the action taken in consequence of those decisions. Thus, Dr Pathmanathan contends that she suffered discrimination contrary to s 14 on the ground of her age in that she was treated less favourably than, in circumstances that are the same or are not materially different, the respondent treated or would treat a person of a different age and the respondent did so because of her age, a characteristic that pertains generally to the age of persons in her position or one that is generally imputed to persons of the same age as Dr Pathmanathan, as young members of the medical profession.

46    A claim of indirect discrimination is asserted contrary to s 15, even though at the outset of the trial, I specifically questioned Dr Pathmanathan as to whether her claims were brought for direct or indirect discrimination and she confirmed the former. In any event, and accepting that this matter is at least obliquely pleaded, the claim is that Dr Pathmanathan suffered unlawful discrimination on the ground of her age in that the respondent imposed a condition, requirement or practice upon her which was not reasonable in the circumstances and which had or was likely to have the effect of disadvantaging persons of the same age as Dr Pathmanathan at the time. Adopting her oral closing submission, she had “broken the glass ceiling” of the establishment of the Perth medical profession, was successful and thereby represented a threat either professionally or economically to her more senior (very much older) colleagues and competitors. Her career was effectively terminated because as a young and successful anaesthetist she suffered unlawful direct or indirect discrimination because of her age.

47    In addition, or in the alternative, Dr Pathmanathan asserts that the decisions made by the respondent and the action taken constituted unlawful discrimination in relation to employment, against contract workers, access to premises or the provision of services and facilities contrary to ss 18, 20 or 28.

48    Like the claims framed pursuant to the Racial Discrimination Act, Dr Pathmanathan does not distinctly identify the material facts relied upon by her as founding each of these contentions. Her claims rest upon the drawing of certain inferences that she invites based upon all of the evidence that has been adduced and considered objectively. The basal point that she relies upon is that her relatively young age was a reason, it need not be the dominant or substantial reason, for decision-making and action taken by the respondent. If that is so, then her claims of unlawful age-based discrimination are made out.

49    Turning next to the Sex Discrimination Act, Dr Pathmanathan contends that she continuously suffered discrimination by various persons for whom the respondent is legally responsible because she is female contrary to ss 5, 14, 16 and 22. Like each of her other discrimination claims, her case rests upon drawing inferences that the respondent treated her less favourably than, in circumstances that are the same or are not materially different, the respondent treated or would treat a person who is male and an accredited medical practitioner at the hospital. Anchored by that broad proposition, Dr Pathmanathan asserts unlawful discrimination contrary to s 14 in employment, s 16 in relation to contract workers and s 22 relating to the provision of services or facilities.

50    Once again, Dr Pathmanathan does not specifically identify the material facts relied upon in order to establish the claims which rest on the broad contention that I should infer from the whole of the evidence that being a successful female anaesthetist was a reason for decision-making and action taken by the respondent. In further support of this claim, Dr Pathmanathan relies upon published research to the effect that there is “significant gender discrimination in the anaesthesia profession and particularly in leadership – higher paying and more powerful positions”.

51    The final discrimination claim relies upon the Disability Discrimination Act, which Dr Pathmanathan frankly acknowledges was not the subject of her terminated complaint to the Commission, but which she now contends arises out of similar facts in order to establish that the respondent discriminated against her based on an imputed disability, being a belief that she suffered from some form of psychiatric disorder. From that proposition, Dr Pathmanathan contends that various individuals breached her privacy by spreading malicious rumours relating to her personal health, induced AHPRA to refer her to a psychiatrist for a mental health assessment and published material to the effect that her personal health may have impacted her ability to practise as an anaesthetist.

52    Dr Pathmanathan does not identify how this allegation is put. Although she asserts that the imputed disability relates to her mental health, she does not specify which provisions of the Disability Discrimination Act are said to have been infringed by the respondent or how the conduct identified by it is a disability that it imputed to her within the meaning of disability as defined at s 4. However, by adopting a broad and beneficial approach, I assume that her contentions rest upon unlawful discrimination in the provision of services or the making available of facilities within the meaning of s 24 and on the basis that the respondent unlawfully discriminated on the ground of an imputed mental health disability by refusing to provide services to or to make facilities available to Dr Pathmanathan or in the terms or conditions or the manner in which those facilities or services were made available to her. Even understood in that way, Dr Pathmanathan fails to explain how it can be the case that imputed disability discrimination occurred in making the suspension decision, when this issue was only raised by AHPRA and the Medical Board following notification of the suspension decision.

53    I should at this point return to how Dr Pathmanathan ultimately framed each of her discrimination claims in her oral closing submissions. It was put to me that a group of doctors within the hospital were working in conjunction with Dr Pracilio in order to identify complaints, group them and then use the complaints as the basis to deny accreditation rights to Dr Pathmanathan with, ultimately, the effect of terminating her career as a specialist anaesthetist. The following exchange then occurred:

HIS HONOUR: So you say I should infer from that that there was this cabal of white, male doctors who had decided that you had to go.

DR PATHMANATHAN: I think - - -

HIS HONOUR: Is that what you’re asking me to find?

DR PATHMANATHAN: Yes. I’ve spoken to Dr Watts, so this isn’t in evidence, so I’m not sure that I can - - -

HIS HONOUR: No. Well, you can’t tell me about that.

DR PATHMANATHAN: Can’t say it. Okay. So let me just say this.

HIS HONOUR: Well, let me just make a note of that, because I want to make certain I understand what you’re putting to me. I should find there was a cabal of white, male doctors - - -

DR PATHMANATHAN: Senior.

HIS HONOUR: - - - who were determined, what, to end my career?

DR PATHMANATHAN: To target me and to get rid of me, to terminate my career. They stated in mid-2013. They’ve been going for a while and they thought this was it. This was enough. This iron infusion was enough to move into the next phase.

HIS HONOUR: I understand what you want me to find. Yes.

54    A little later Dr Pathmanathan submitted to me that a group of senior doctors, some of which she identified in her evidence, worked in collusion and implemented a strategy which she described as a “playbook”, the foundations of which were laid out in mid-2013 and which was ultimately executed on 11 November 2014 when her accreditation rights were suspended. An immediate difficulty that Dr Pathmanathan must face is that these contentions were not fairly put to a number of senior doctors who gave evidence and who were within the group of alleged bad actors. When questioned by me as to why these serious allegations were not put to individual witnesses, Dr Pathmanathan answered that she did not have “all the evidence” to do so. As I explain later in these reasons there are two straightforward answers to that assertion. One, Dr Pathmanathan produced an extraordinary amount of affidavit and documentary evidence gathered by her between 2015 and 2022 and it is difficult to accept that she failed to turn up evidence within that period to support her overall case theory. The other, that there is simply no credible basis in any of the evidence adduced which lends support to this serious allegation of misconduct.

Breach of contract claims

55    Dr Pathmanathan contends that she was offered and accepted accreditation and thereby entered into a contract with the respondent pursuant to which she would admit patients or provide anaesthetic services to patients at the hospital, and it would benefit by charging various hospital fees to the patients. There is no suggestion that a fee was required to be paid to either putative party. Material terms of the contract included mutuality of obligation whereby the respondent agreed to act in accordance with its corporate governance documentation to “create a culture that values and supports caregivers, with employment relations based on trust and principles centred on and aligned with” the mission and values of the respondent. Further, the contract was subject to the respondent’s By-Laws for Health Professionals (By-Laws) with clauses to the effect that the applicant would be treated fairly and with respect.

56    Accordingly, it is submitted that the decision taken to suspend Dr Pathmanathan’s accreditation rights was in breach of contract. Tangentially I have understood this claim as extending to a contractual failure to provide procedural fairness in the conduct of an investigation (which Dr Pathmanathan contends did not take place) and prior to taking the decision to suspend her accreditation rights.

Negligence

57    The claim is that the respondent was bound by a common law duty to provide a workplace to Dr Pathmanathan that was safe and free from bullying, harassment and discrimination. The duty extended to acting fairly and impartially in the investigation of any complaints made against her and to take “educational rather than punitive action”. The claim is that the respondent breached those respective duties by the manner in which it permitted others to interact with Dr Pathmanathan, failed to fairly and impartially investigate allegations made against her, failed to provide a safe workplace and implemented a punitive disciplinary and suspension process.

58    A particular aspect of this claim is the somewhat novel contention that the respondent was subject to a common law duty to afford procedural fairness to Dr Pathmanathan by conducting a thorough and objective investigation and was bound to put each allegation to her before deciding to suspend her accreditation.

Fraud and fraudulent misrepresentation

59    The claim is that the respondent knowingly made various false statements about the applicant to third parties, permitted others to notify fraudulent incidents relating to her conduct as an anaesthetist, permitted malicious and false rumours to be circulated about the applicant within the hospital and took at face value and acted upon each of the fraudulent incident complaints, that I have set out in detail above.

Intimidation

60    Tortious intimidation is asserted. Dr Pathmanathan accepts, by reference to Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2014) 45 VR 571; [2014] VSCA 348, the elements of the tort require identification of the making of a demand, together with a threat, to commit an unlawful act which then caused the person threatened to comply with the demand. Just how those elements are said to be made out by Dr Pathmanathan in this case is obscure. Put at its highest, she contends that she was:

…compelled into blindly trusting and having faith in the Respondent, the largest private hospital operator in Western Australia. The size of the Respondent in market share and influence enabled them to abuse their power by exploiting third parties known to the Applicant to her detriment.

By way of its position and power, and ability to afford employment or appointments of high reputation, implicitly or [sic] threatens individuals whom it sought to act in its aide [sic] against the Applicant.

61    As examples of the asserted breach, Dr Pathmanathan contends that Dr Pracilio implicitly threatened another witness in this case, Dr Barry, who was threatened not to provide a witness statement, that Dr Chandraratna was “told” not to become involved in her case and that the respondent interfered with witnesses that the applicant proposed to call, or did call, at the trial.

Unlawful interference with trade or business relations

62    Dr Pathmanathan contends that there was a business or prospective business relationship between her and the respondent, that she was successful in developing her practice as an independent specialist anaesthetist, the respondent had knowledge of her success and various opportunities that would become available to her over time to be more successful in her career and that knowledge extended to business relationships between the applicant and other hospitals. With that knowledge the respondent by its employees or agents interfered with her professional and business relationships in order to isolate her, reduce her standing in the profession and to prejudice her economic interests, relied on “sham complaints” to suspend her accreditation rights at the hospital and caused her further damage by referring her conduct to AHPRA. It is said that all of this conduct amounted to an unauthorised interference and intentional infliction of economic harm.

Tort of conspiracy

63    Dr Pathmanathan contends that senior doctors with accreditation rights at the hospital and senior doctors who were executive representatives of the respondent conspired with nursing staff to formulate “sham complaints” and then acted in concert with MDA and lawyers appointed by it to act on its behalf and for Dr Pathmanathan to escalate and publicise the complaints in order to cause injury, both personal and economic, to her. The conspiracy alleged is broad and has very many tentacles extending to, at least: the respondent, individual senior doctors, MDA, Tottle Partners, Clayton Utz, AHPRA and the Medical Board. Each conspirator acted for an unlawful purpose being to interfere with the applicant’s professional and business relationships, to cause harm to her and to end her career.

64    This claim is said to be established by drawing links between the association of individuals, professional and personal, and steps that were taken which caused harm to the applicant where, in addition, some steps are claimed to have been taken by lawyers for the applicant without her authority or by applying unjustified pressure on her amounting to undue influence.

Breach of trust and other equitable claims

65    Dr Pathmanathan relies on an array of equitable claims, but fails to grapple with how it is said they may arise on the facts of her case. The first is characterised as a breach of trust which rests on the contention that there was a trust relationship between Dr Pathmanathan and the respondent, the trust property being “reputational and clinical case and practice information (including style of practice)”. Without descending into a plea of material facts, breach of trust is asserted with consequential damage.

66    The second is framed as a breach of fiduciary duty: a failure to act in the applicant’s best interests by failing to disclose relevant information or misusing trust property. This contention extends to a conflict of interest where it is said that the respondent favoured its interests “over and above” those of the applicant and in consequence is “answerable in equity to a breach of fiduciary duty”.

67    The third claim is framed as a breach of confidence. The applicant says that medical, dental, commercial and financial information of hers attracts the necessary quality of confidence, comprising information that was not generally known or available to the public, was imparted by her to the respondent in a commercial setting imparting an obligation of confidence and was disclosed to third party hospitals and to her professional colleagues, in breach of that confidence.

68    The fourth is a generalised claim of unconscionable conduct resting on the contention that the applicant’s circumstances amounted to a special disadvantage by reason of her relatively young age, sex, ethnicity and legal illiteracy – the latter being relevant to her dealings with the respondent from 2014. The particular complaint is that the respondent exploited the applicant’s special disadvantage in that there was no reasonable degree of equality in its dealings with her and it procured her consent to legal representation where she believed (wrongly) that such representation would be independent and free from influence of the respondent. In fact, as the contention is developed, the legal representation provided to the applicant by Tottle Partners and Clayton Utz was not independent and placed her under significant duress. This claim is further asserted somewhat differently as amounting to undue influence exerted by the respondent over her decision-making in responding to the allegations made against her.

Invasion of privacy

69    The applicant invites this Court to recognise, as part of the law of Australia, the tort of breach of privacy relying upon Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63 (Lenah Game Meats). The contention is that the applicant’s privacy was unlawfully exposed by painting her in a false light when the respondent caused to be disseminated information relating to her medical practice, her patients and her health contrary to her human dignity. The specific contention is that the respondent caused to be published “vague or specific personal health information” relating to her such that she was subjected to supervision and mentoring and suffered from a mental health impairment or other form of personality disorder.

Defamation

70    The claim is that the respondent “and their conspirators” published information about Dr Pathmanathan imputing to her an adverse conduct finding, an adverse performance finding and an adverse health finding, each of which impacted on her ability to practice as an anaesthetist. Very many publications are relied upon at different points in time, commencing with asserted malicious rumours in February 2013, extending through the process of investigating the four complaints made against her and, thereafter, the publication of material relating to the applicant to AHPRA and the Medical Board.

71    Dr Pathmanathan fails to address the limitation period of one year set by s 15 of the Limitation Act 2005 (WA) (which the respondent relies upon in defence) and the effect of s 237(1) of the National Law which provides immunity for notifications made in good faith to AHPRA.

Torture

72    The claim that is pressed is that the respondent on and from 11 November 2014, and with knowledge that suspension and referral of allegations concerning the applicant to AHPRA would cause her harm, intentionally acted so as to inflict such harm upon her or otherwise acted recklessly, and unconscionably with “conscious contumelious disregard to the Applicant’s rights”. This conduct was engaged in not only by the respondent but also by MDA and lawyers appointed to act on the applicant’s behalf so as to obtain information or a confession from her by “gaslighting”, soliciting or otherwise obtaining information by way of fabricating submissions and meeting minutes. This conduct, as the allegations develop went so far as to inducing AHPRA “to conduct a prejudiced investigation” into the complaints.

Equity in justice

73    Finally, just what is meant by this claim is difficult to comprehend. Dr Pathmanathan prays in aid r 1.32 of the Rules which empowers this Court, in procedural case management, to make any orders that it considers appropriate in the interests of justice and in the particular circumstances of individual cases. Reliance is also placed on s 46PR of the Commission Act which as I have noted, dispenses with technicalities or legal forms in the conduct of this proceeding. From there Dr Pathmanathan contends that this Court “should act in the best interest of the proper administration of justice to cure any wrongs and damage caused by the Respondent”. How that amounts to a cause of action was left unexplained by her.

Some observations about the claims advanced and maintained

74    Dr Pathmanathan has pleaded or attempted to plead her claims first in a statement of claim comprising two parts: one lodged 29 March 2019 and the other on 30 March 2019 and where the second part is in the form of an additional pleading which responds to certain affidavits of the respondent filed on 29 March 2019, relevant to the application for leave to proceed. Pursuant to case management orders that I made, Dr Pathmanathan filed a consolidated and amended statement of claim on 13 May 2022 comprising 54 pages. The respondent delivered an amended defence to that document on 30 June 2022, and addressed many of the contentions of the applicant by pleading a failure to disclose a reasonable cause of action, that many of the allegations were scandalous, frivolous or vexatious and, where relevant, that the pleading was likely to cause delay in this proceeding and amounted to an abuse of process.

75    In response, Dr Pathmanathan on 4 October 2022 filed a reply comprising 343 pages and without adopting, in the main, sequentially numbered paragraphs. The reply is a very difficult document to read and to understand. It is replete with argumentative contentions, submissions and repeated references to asserted facts.

76    Acting as a self-represented litigant does not relieve individuals of the obligation to conduct proceedings consistently with the overarching purpose of civil practice and procedure at ss  37M and 37N of the Federal Court of Australia Act 1976 (Cth). Dr Pathmanathan’s pleadings are evidence of failure on her part to conduct this litigation as quickly, inexpensively and efficiently as possible. That observation extends to the 24 voluminous affidavits that comprise her evidence–in-chief upon the trial. In many respects those affidavits are replete with scandalous, irrelevant and argumentative material.

77    The respondent did not move to strike out any component of Dr Pathmanathan’s pleadings on any one or more of the grounds set out at r 16.21 of the Rules.

78    Managing the trial so as to confine it to relevantly pleaded matters of fact was challenging. I am in no doubt that the hearing was significantly prolonged by reason of these matters.

79    Nonetheless, I record that Dr Pathmanathan and Mr Millar of counsel for the respondent each conducted themselves with civility and politeness throughout the trial.

80    As I explain in detail many of the contentions formulated and ultimately pressed by Dr Pathmanathan are hopeless. However, one must be careful not to dismiss the entirety of the proceeding by reference to such generalities as, buried within the morass of material, the argumentative and sometimes illogical propositions relied upon, may lurk the kernel of a cause of action that is of merit.

My approach to the assessment of the evidence

81    The primary events in this matter occurred between 2013 and 2015. A large number of witnesses gave oral evidence as to events witnessed, steps taken and conversations conducted many years ago. As is well understood, that gives rise to difficulty in making findings of fact. I proceed in accordance with the well-known and often cited reasons of McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 318-319, albeit in the context of a claim for misleading and deceptive conduct but which in my view is of general application:

Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition. Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.

82    As Wheelahan J has recently observed, the evaluation testimony involves much more than evaluation of the impressionistic appearance of a witness. Evidence is more reliably evaluated with the contemporaneous documents and the fact that a conclusion is reached that a witness has given false or knowingly false evidence on one matter is not necessarily a reason to reject evidence as to other matters or the entirety of the testimony: Fair Work Ombudsman v Roach (the Melbourne Quarter Case) [2023] FCA 156 at [187]-[188].

Findings of fact

83    Many findings are required, informed by a large amount of documentary, affidavit and oral evidence. I proceed by addressing the main issues to be resolved.

Dr Pathmanathan is granted accreditation

84    Dr Pathmanathan’s application for accreditation at the hospital was approved on the terms set out in a letter from Dr Levitt, then Director of Medical Services, dated 23 February 2012. Relevantly it provides:

I am delighted to advise you that your application for accreditation at St John of God Hospital, Subiaco in Anaesthesia has been successful. I believe you have met with Dr Joe Pracilio Head of Anaesthesia and understand the terms of your accreditation specific to this site in regards to an after hours roster commitment. You are expected, at all times, to undertake only those clinical activities which your training and experience make safe and reasonable. It is important to emphasise that any extension of your clinical practice must only be undertaken following your application to, and written authorization from, the Medical Advisory Committee.

All Clinicians accredited at St John of God Hospital, Subiaco are expected to participate fully in the teaching of Medical Students and Junior Medical Officers where called upon to do so. Likewise, it is an expectation of all accredited Medical Practitioners that you will comply with the Hospital’s By-Laws, a copy of which you received with the accreditation application. In particular, you are expected to actively participate in clinical audit, cooperate fully with Hospital Management and Heads of Department and act at all times in concert with the Hospital’s Mission and Values.

Finally, I have enclosed a copy of the document titled “Bringing our values to life through our behaviour” which describes the expectation that every person working within St John of God Health Care will embrace the highest standards of interpersonal behaviour.

Once again, congratulations on being accredited at St John of God Hospital, Subiaco.

85    The hospital By-Laws are in evidence, individual clauses of which were emphasised by Dr Pathmanathan and the respondent. It was not suggested that the By-Laws were amended after February 2012 in a material way that affects the case. Larissa Johnstone annexes a copy of the By-Laws to her affidavit of 29 March 2019. The preamble states, inter alia, that the By-Laws establish the principles which apply to the accreditation of health professionals at the hospital and govern the relationship between the respondent and accredited health professionals.

86    Accreditation is defined as the process of credentialing by which a practitioner is granted authority to provide healthcare services with specified limits at the hospital. Credentialing is defined as collecting, verifying and assessing information relating to the education, training and experience of medical practitioners. Clause 2 sets out the mission and vision of the respondent, including to develop a culture where each person is respected and there is a deep commitment to its values. Clause 3 sets out the core values by reference to a statement of beliefs and principles being hospitality, compassion, respect, justice and excellence. Clause 7.1 provides:

Only Practitioners who have been accredited and granted clinical privileges at a Division may admit patients to and consult and attend patients of that Division. Reciprocal accreditation with another Division may be granted at the discretion of its Chief Executive Officer after application is made with the appropriate Credentialing Committee.

87    Clause 12 is concerned with the accreditation of anaesthetists. By cl 12.2, all anaesthetists who administer anaesthesia at the hospital shall comply with and practice in accordance with all professional standards of ANZCA and all professional documents and publications published by that College.

88    Clause 23 is concerned with the constitution, role and function of the credentialing committee. The committee receives all applications for accreditation, makes recommendations thereon to the Chief Executive Officer and reviews “as required from time to time the scope of clinical practice of any Practitioner, and make recommendations concerning the amendment of those privileges, conditions of accreditation, or suspension or termination of accreditation.”

89    Clause 25.16 is concerned with confidentiality and provides:

Every Practitioner including the applicant must treat as confidential the proceedings relating to the granting to Practitioners of accreditation or re-accreditation and the delineation of privileges.

90    Accreditation is granted for a period that must not exceed three years, but accredited practitioners may be re-accredited: cll 25.13 and 26.1. If a practitioner does not seek re-accreditation or renewal, the accreditation lapses: cl 26.6.

91    By cl 27 certain powers are conferred upon the Chief Executive Officer in relation to accredited practitioners. This clause was the focus of much evidence at the hearing. Relevantly it provides:

27.1    Fitness of Practitioner

(a)     Any concerns about the current fitness of a Practitioner should be directed to the Divisional Chief Executive Officer.

(b)    The Divisional Chief Executive Officer may either independently, or together with another member of the Medical Advisory Committee, meet with the Practitioner concerned to determine whether there are grounds as to the Practitioner’s lack of current fitness.

27.2    Suspension or Termination of Accreditation or Refusal of Re-Accreditation

The Divisional Chief Executive Officer may suspend or terminate the accreditation of any Practitioner or may refuse the re-accreditation of any Practitioner:

(a)     who has been guilty of a breach of these By-Laws; or

(b)     where the Divisional Chief Executive Officer has formed the opinion that:

(i)    the Practitioner has engaged in practices which are contrary to the Values of SJGHC or these By-Laws; or

(ii)     the Practitioner has been guilty of abuse (whether physical, sexual or verbal) or harassment or has caused unnecessary or unwarranted stress to other persons working in or visiting the Hospital; or

(iii)    the conduct of the Practitioner has been or is reasonably likely to be contrary or inimical to the interests of the Division; or

(iv)    the Practitioner is not of good repute; or

(v)    the Practitioner is not competent or appropriately skilled in the discipline or practise in which the Practitioner seeks accreditation or is accredited or practises (as the case may be); or

(vi)    the accreditation or continued accreditation of the applicant would be contrary to the best interests of the Division or its patients or patient care at the Hospital; or

(c)    if the Divisional Chief Executive Officer does not have confidence in the Practitioner practising at the Hospital for any reason including but not limited to:

(i)    the practice, or the standard of practice, or the competence or the general behaviour of the Practitioner;

(ii)     the ability of the Practitioner to conduct his or her practice within the Division, to an appropriate or proper standard;

(iii)     any matter or thing affecting the Practitioner's practice or ability to practise to an appropriate or proper standard; or

(iv)     any allegation of incompetence, negligence or malpractice concerning the Practitioner; or

(d)    if the Divisional Chief Executive Officer is not satisfied that the Practitioner has satisfactory professional indemnity insurance or is appropriately registered; or

(e)    if, in the opinion of the Divisional Chief Executive Officer, there exists any other fact or circumstance which renders it inappropriate or undesirable that accreditation be granted to the Practitioner or that accreditation of the Practitioner be continued.

92    Part VII establishes a system for appeals that may be brought by an accredited practitioner against a decision made under cl 27. Amongst other things, an Appeals Committee is to be constituted to hear any appeal by an accredited practitioner from a decision to suspend or terminate the accreditation: cl 32.3. Dr Pathmanathan did not invoke that appeal procedure to review the decision to suspend her accreditation, although she did lodge a review application with the SAT against a decision of the Medical Board. It was not proceeded with.

93    Part IX is concerned with the effect of the By-Laws and provides:

38.    BINDING EFFECT

38.1    Agreement of Practitioners

    Each Accredited Practitioner agrees that:

(a)    he or she will be bound by these By-Laws (as amended from time to time) upon seeking or renewing accreditation, or by continuing to practise at the Division following receipt of these By-Laws or notification of the publication of these By-Laws; and

(b)    he or she will comply with these By-Laws during his or her practice at the Division.

The applicant’s case

94    It is logical to commence with the discrimination claims, noting that the evidence relied on is common to each claim. The discrimination claims open for consideration the largest area of factual contest. The focus however is upon the four reported incidents concerning the professional conduct of Dr Pathmanathan, the most prominent and important of which is the iron infusion incident.

Discrimination claims

The iron infusion incident

95    Although this is the last reported incident in time, it is the one which occupied most attention during the trial, is pivotal to the decision-making of the respondent and founds the primary allegation of Dr Pathmanathan that she suffered unlawful discrimination because she was singled out and suffered a suspension of her accreditation when, on her version of the events, multiple other persons who were present in the operating theatre on 28 October 2014 were knowing participants in and accessories to the fact of the cannulation and delivery of an iron infusion. For that reason I address the evidence relating to this incident first.

96    There are four issues that Dr Pathmanathan agitates:

(1)    Was the infusion a solo act by Dr Pathmanathan;

(2)    What, if any, was the relative risk to the patient and Dr Pathmanathan;

(3)    Did the respondent adequately investigate the facts before deciding to suspend the accreditation of Dr Pathmanathan; and

(4)    Did the respondent fail to afford procedural fairness to Dr Pathmanathan.

97    Dr Pathmanathan’s contention is that each issue should be resolved in her favour and, if so, I should infer that the respondent’s decision-making and actions were unlawfully discriminatory. As I understood her submissions, that proposition holds even if some of the issues are resolved unfavourably to her.

98    The hospital records for Theatre 18 on 28 October 2014 record the admission of patients for surgery performed by Mr Chandraratna in two sessions: one commencing at 7.30 am and the other at 1.30 pm. Three patients are listed in the first session and two in the second. The recorded anaesthetist is Dr Pathmanathan. The iron infusion incident occurred during surgery on the last patient. That patient was admitted to the hospital, but not to theatre, at 11 am. Dr Janet Barry is recorded as the surgical assistant. The procedure to be performed is described as:

Laparoscopic Sleeve Gastrectomy – Revisional + Minimiser Ring.

99    A general anaesthetic was given by Dr Pathmanathan. The records do not disclose the time surgery commenced or was completed although it is recorded that the patient was admitted to the ICU at 1900.

100    At my direction, and in common with each relevant witness, Dr Pathmanathan gave viva voce evidence-in-chief relating to the primary disputed events and conversations. Her oral evidence on those matters was as follows. From mid-2014, Dr Pathmanathan was providing anaesthetic services in Melbourne and Perth. This required significant amounts of travel. She consulted a general practitioner, Dr Barry, on 14 October 2014 in consequence of feeling lethargic. Dr Barry took a blood sample. Dr Pathmanathan attended the hospital on the morning of 28 October 2014, in order to administer anaesthetic to surgical patients. Whilst checking her patient records for the day, she came across her blood test results and observed that her iron levels were deficient.

101    Armed with that information, Dr Pathmanathan had several discussions with her colleagues, explained that she suffered from an iron deficiency and requested advice as to what medication, in the form of tablets, might be taken. One of her colleagues, she is unable to remember who, suggested that she receive an iron infusion instead of a course of iron tablets. On her evidence discussion about her iron levels and what might be taken to address the deficiency extended over an approximate five hour period. The persons with whom she discussed the matter at least included Dr Barry, Mr Chandraratna and a person who was not identified in the evidence, but was often disparagingly referred to by Dr Pathmanathan as “Dr Nameless”. On Dr Pathmanathan’s account, this person was a former pharmacist who had later in life chosen to study medicine and was at the time a medical student. At some point during these discussions, the product Ferinject was mentioned. Dr Pathmanathan stated that this is a newer preparation to address iron deficiency which does not carry a significant anaphylactic risk. On her assessment Ferinject carries a negligible anaphylactic risk: something in the order of one in 100,000 to one in a million.

102    Ms Karen Morris was assigned as the anaesthetic technician for the surgical list, although she did not usually perform that role to assist Dr Pathmanathan. Dr Pathmanathan recalls that she attended the theatre later in the afternoon of 28 October 2014 when she became “part of the discussion”. Dr Pathmanathan decided that she would receive an infusion of Ferinject and for that purpose wrote out a pharmacy script which she requested Ms Morris to take to the hospital retail pharmacy. This Ms Morris did and returned a little later with the Ferinject. This product required some form of preparation, which is usually the task of a nurse. Ms Morris assisted Dr Pathmanathan to prepare the product. An operation was at that time underway in an adjoining operating theatre, Theatre 17, with Dr Longhorn as the anaesthetist. Dr Pathmanathan says that she went into the adjoining theatre and spoke with Dr Longhorn to ask him “if he would assist”. By that evidence she meant take over and assume responsibility for the handling of her anaesthetised patient for the period of the iron infusion and assist with the infusion. Her evidence of that conversation is:

So I went to speak to Dr Longhorn, who was in operating theatre 17 and asked if he would assist. I told him about who the patient was. So that’s our way of handing over a patient. And I said, “This is the case”, and, “Can you help? This is my last case. And can you help with the cannulation and the monitoring and iron – you know, the iron infusion and monitoring the patient?” And he agreed, which is why we then sent Ms Morris or then – which is why we decided to proceed.

103    Once the Ferinject had been prepared, Mr Chandraratna requested Dr Nameless to “unscrub and help administer the iron infusion”. There are several steps required to be performed to administer an iron infusion. In addition to the evidence of Dr Pathmanathan, there is tendered as an exhibit in this proceeding the basic components of the apparatus. The Ferinject is prepared and placed into a clear plastic bag which is attached to a tube. The plastic bag is placed on a stand so that the liquid may be infused by force of gravity. On the evidence of Dr Pathmanathan, the bag was placed on a high stand, the liquid is dark brown in colour and in consequence was visible to each of the persons in the operating theatre. The theatre itself is relatively compact and rectangular in shape with an approximate dimension of 5m by 5m.

104    Dr Pathmanathan is unable to recall who was responsible for placing the iron infusion bag onto the stand. Nor can she recall exactly what role Dr Nameless and Ms Morris performed. In order to receive the infusion, Dr Pathmanathan explained the procedure which commences with the insertion of a needle into a vein in the back of her left hand. On her account it is not possible to undertake the necessary steps without assistance. Her evidence is:

DR PATHMANATHAN: There’s a needle that has to go into my vein. So I have to put a tourniquet on.

HIS HONOUR: Yes.

DR PATHMANATHAN: Then there’s – so that my veins are easy to access – and then there’s a needle that has to go into my vein. And then there’s a plastic bit that gets left in. And the needle gets withdrawn out. And then the infusion has to be, you know – wherever it’s hanging, it has to be picked up, brought across and connected. And, also, the tourniquet has to be let go at that same time. This plastic bit has to be secured. And the blood – there has to be compression there as well because the blood has to stop flushing out, otherwise, you will have, you know, kind of – a bit of a - - -

HIS HONOUR: Is that what you mean by a “bloodbath”, which I’ve read in your material?

DR PATHMANATHAN: Yes, a “bloodbath”. So you would actually have to have blood gushing out, which would have been recorded in the notes because the – I’ve looked at the surgical count sheet now. And I don’t believe there’s any discrepancy there. And so the – every material in the operation gets counted, just in case they don’t get left in the patient for whatever reason. And so the – even a swab would be counted. So if there was blood everywhere, that would have been counted on the surgical – on the operation record. That’s why I asked for that operation record. And there was – I know from memory there was none. So the infusion gets picked up, gets connected. Somebody has to hold the compression on the vein to stop the blood from squiring out.

And the needles has – there has to be tapes to secure the needle or the plastic, I should – the cannula part. And then somebody comes in, connects it. And then somebody has to hold it down, while the securing is – or to make sure that it just doesn’t get pulled out because that’s another risk that happens, that these infusion kits get pulled out. So then that has to be secured. And that usually takes two hands. So, really, with one hand, it’s impossible to implausible that I would have done it, and there’s – also, there was absolutely no reason for me to have – having done it in a room full – there was almost 10 to 12 people in that room. There was no reason for me to do that when there’s all these skilled practitioners around, and I’ve got Mr Chandraratna asking his surgical scrub assistant to – who’s a medically – who’s a medical professional, to give me this infusion, and this is something, as I said before, that nurses are skilled to do as well, including medical students. So it’s not – you don’t have to be a specialist anaesthetist for this. Is there anything else I need to tell you or remember? Is there any clarification?

105    I did not require further clarification in response to Dr Pathmanathan’s question. Her evidence then continued to the effect that Dr Longhorn entered the theatre and the following occurred:

So just to let you know, Dr Longhorn came in the middle of it, put his hand on my shoulder, which I didn’t think was a problem as – just to – and he looked at the monitor, looked at me and said, “Good. I’m just next door if you need.” In his affidavit, he says he spoke to Ms Morris, and he may well have. I’m not sure. I don’t recall that, but he – he – I know he came in. He was happy with the status at that time – and that he was going to be next door if we needed.

106    Dr Pathmanathan then gave evidence about risk of harm to the anaesthetised patient whilst the iron infusion procedure was performed. On her evidence there was “no risk of harm to the patient” because of the ready availability of Dr Longhorn to assume responsibility, no infection risk was proposed because Dr Pathmanathan was approximately 2m away from the patient and Ferinject is recognised as a low risk product.

107    A more fulsome account of the iron infusion incident is set in one of Dr Pathmanathan’s affidavits dated 25 October 2015 with the title: Fraudulent Complaints Part 2. Although infused with argument and inadmissible material, the account in that affidavit is:

13.    Fact 38: On 14 Oct 2014, Dr Janet Barry performed a blood test for iron studies and thyroid function tests in Operating Theatre 18 at the Respondent’s Hospital.

(a)    The Applicant was under duress of a toxic environment, long work hours and fly-in-fly-out work to Melbourne. She was tired and had discussed a blood test with Dr Barry.

(b)    Dr Barry performed that day at the end of the operating theatre list at approximately 20:00 / 21:00 (pm). Dr Barry had assisted the Applicant by performing the phlebotomy service

i.     Notably, on 11 Nov 2014, the Dr Barry brought in some Claratyne to the Respondent’s operating theatre for the Applicant to take.

See Annexure MF-38b p1

(c)    Although the Respondent was tired, she was not ‘unfit for work’.

Certainly, the culture at the Hospital was to require staff to attend even when tired. On 2 Dec 2012, the Respondent had written a note condemning the Applicant for not responding in the early hours of the morning. She had worked from 6am to 2am the following morning, i.e. 20 hours non-stop virtually with her day-time lists and overnight labour ward work. This was the culture in medicine. See Annexure MF-38b p2

14.    Fact 39: On 28 Oct 2014, Dr Janet Barry, Dr Harsha Chandraratna and the third surgical assistant (a junior doctor and ex-senior pharmacist) had recommended the Applicant have an iron infusion that day in the Operating Theatre.

(a)    A course of events followed including;

i.    At 6am prior to starting work at 7am, the Applicant reviewed her blood results as it was in the pile of patient results. At a glance she noticed the bold red number showing iron deficiency.

ii.    At approximately 10:00am, the Applicant said to Dr Janet Barry, “I know why I’m tired. I’m iron deficient. Which iron tablets should I take?”

iii.    It was upon this request that either Dr Barry or Dr Chandraratna from the surgical team stated along the lines of “Why do you want to take tablets? We can give you an iron infusion today. We give it to our patients all the time (in outpatient clinic)”

iv.    All three doctors from the surgical team insisted the iron infusion was safe and the Applicant should have it administered that day.

v.    The Applicant went next door to ask Dr Ralph Longhorn to assist which he agreed to.

vi.    Approximately 10 people were present, including but not limited to, Dr Chandraratna, Dr Janet Barry (surgical assistant to Dr Chandraratna), Dr Unnamed (second surgical assistant to Dr Chandraratna), L White (a registered nurse), R Gallwey (a registered nurse) and Karen Morris (anaesthesia technician), at least 3 nurses at the doorway and Dr Ralph Longhorn who attended to monitor. We note all the names have not been revealed as the Respondent has failed to release the Operating Theatre Records despite multiple requests.

vii.    Ms Karen Morris agreed and attended the Hospitals pharmacy to retrieve the iron infusion mixture.

viii.    The Junior doctor un-scrubbed and assisted Ms Karen Morris to administer the iron infusion.

ix.    During the infusion, Dr Ralph Longhorn specifically attended during the infusion, checked the patient, and patted the Applicant on the shoulder. He stated he would be next door in Operating Theatre 17 if they needed anything. (Operating Theatre Records from OT17 had been requested but withheld by the Respondent)

x.    The iron infusion took place during the maintenance phase of surgery, as Professor David Story, the independent expert pointed out – at a time when Anaesthetists play Sudoku, Crosswords, or chat etc.

xi.    The Applicant completed Anaesthetising the patient and those for the rest of the day. The Anaesthesia and Surgery took place with no risk of harm nor any harm to the patient.

(b)    The Respondent was the Duty Anaesthetist on the day.

(c)    Relevantly, during the iron infusion, the Applicant had handed over patient care to Dr Ralph Longhorn, from OT 17, who had accepted the handover and responsibility. The Applicant has sworn statements denying self-cannulation and self-administration, a highly improbable and impossible act under the circumstances. Ten staff and accredited practitioners willingly participated in the iron infusion.

(d)    AJ Montgomery et al, “Review of Self-Medication in Physicians and Medical Students” (2011) 61 Occupational Medicine 490 – medical practitioners have high rates of reliance on informal peer networks for treatment.

(e)    The surgeons witness statement and nurses coerced incident report provide contradictory facts. It is defamatory to state the Applicant made an unprofessional decision, as she was repeatedly recommended by the surgical team. No sworn affidavits from the participants, disclosure of identities, or witness statements from 2014, have been submitted by the Respondent to date.

(Original emphasis.)

108    Dr Pathmanathan also gave evidence that she made a file note recalling the iron infusion incident, although she could not recall precisely when it was made. To the best of her recollection it was made before 25 November 2014. The document reads:

The iron infusion incident:

•    I was feeling tired and had thought after glancing at my blood results in a pile of results the morning of the iron infusion that I was iron deficient

•    I had no intention to act on the blood results when going into work that day and hence only a cursory glance at the blood results

•    During the early stages of the day ... maybe case 2 or 3 I casually mentioned “I know why I'm feeling tired guys... what iron tablets shall I take”

•    The response by the surgical assistant &/or surgeon was why do you want to take tablets. We can give you a infusion today. It's easy and we administer a lot of these in our clinic.

•    I had previously been to a dinner meeting where discussion of the iron preparation had occurred and was certainly aware of it's safety profile and had used it in my practice at least once or twice before.

•    The third assistant was a postgraduate medical student but prior was a pharmacist at a regional hospital

•    I asked repeatedly how safe it was and was reassured by all three that this was an extremely safe new drug

•    Certainly when I googled the drug during the day I found this to be true. The TGA in fact puts the risk of the drug for any serious reactions which may render me unable to provide an anaesthetic at 1 in 1000 to 1 in 10 000.

•    Thus in consideration of risk I felt that the following;

•    The drug was safe to me and thus would not affect my ability to provide an anaesthetic

•    Having a second senior anaesthetist involved and certainly other clinicians in a tertiary facility would render the risk to the patient as zero and to me as less than 1:1000 in inability to practice.

•    I initially needed a fair bit of thinking, researching, consideration to think this was a good idea. It was not my initial judgement but my lapse was to go against my initial judgement to be convinced by the reassurance and recommendation of my colleagues to take the iron infusion

•    I during the second last case or last case during a quiet period wrote a prescription and asked her to go to the pharmacy. The drug was dispensed and charged to my credit card.

•    I never left the room. The lack of availability of anaesthetic nurse in theatre environments is normal. They often leave during the quiet period of anaesthesia and often don't tell us where they are. Numerous times I will ask for my nurse but will have a substitute stand in. So this was not abnormal.

•    The infusion itself was set up by my anaesthetic technician and senior medical student/previous pharmacist thus I was able to care for the patient during this time.

•    It seemed that the down time during the last case was the most opportune for the following reasons;

•    The patient was in status quo

•    There was little interaction needed by me with the patient

•    All I had to do was monitor and be vigilant which I was still able to do during the 2-5mins of the insertion of cannula and iron infusion

•    Dr Longhorn was available at this time and had not gone home

•    Other hospital staff were available

•    So this was the lowest risk period during the day

•    The second anaesthetist came into cannulate and checked the cannula and me and further reassured me and nothing more was said

•    The cannula was immediately removed after the infusion and I felt well.

The room had the following people;

l.     Surgical Assistant

2.    Surgeon

3.    Second anaesthetist

4.    Junior medical practitioner (about to be an intern or already an intern)/ex-pharmacist

5.    Anaesthetic technician

6.    Scrub nurse

7.    Floating nurse

8.    Another one or two nurses

Two weeks later I had an appointment to see Dr Joe Pracilio. I saw him after my next bariatric list and he was aware that I was going to give further Anaesthesia that day and asked me to see him after the list.

That meeting was the first time we had discussed the incident and he was unaware that others were involved. He had not performed an intrahospital inquiry by this stage but had sought legal advice to immediately suspend me.

The conversation with Dr Pracilio is as follows;

“The phone is ringing off the hook”, “You are the talk of the town”, “everybody wants me to do something about you”

“I have no choice but to suspend you indefinitely”, “I know you have worked many years and your career has now come to an end”. Don't be mistaken “I won't be able to sleep tonight”

When I explained that Dr Longhorn was involved. He said “was Ralph involved”, “why didn't he stop you”, “what was Ralph thinking”, and after a few moments of consideration he said “if you mentions Ralphs name I will have to suspend him too”, “so I suggest you don't and if you do I have other complaints about you”. “I have been told you transferred an intubated ICU patient and left them in the corridor”, I said it's highly unlikely that I would do that and I certainly don't recall any such event. I do recall stopping in the corridor and returning fentanyl to the recovery but the patient was never intubated. Further the patient was stable and well. He then said well I have already spoken to lawyers so I suggest you get legal representation. He further said “the lawyers might come after me but I am not scared”. He then said “I heard about the glycine incident”, “I gave you that list and you are meant to look after your surgeon”, “how could you”. I believe he had received incomplete information from another hospital that he was using against me in a wrongful context. I stated to him that a root cause analysis had been performed and there was no finding of any anaesthetic wrongdoing.

109    As I have noted, Dr Pathmanathan was not made aware that any report had been made to the respondent about the iron infusion incident until 11 November 2014 when the matter was raised with her by Dr Pracilio. Her evidence-in-chief of that meeting is that she was working at the hospital as an anaesthetist on another bariatric surgery list. At some time during that day, Dr Pracilio requested that she meet with him after hours. She was not warned as to the purpose of the meeting. Upon completion of the list, she attended Dr Pracilio in his office. No other persons were in attendance. Dr Pracilio asked Dr Pathmanathan to give her account of the iron infusion incident. On her evidence she informed him that Dr  Longhorn was involved. In response he said, words to the effect, that if there was further mention of Dr  Longhorn’s name that he “will make other – I’ve got other complaints about you, but this is enough”. The discussion continued to the effect Dr Pracilio stated that the incident would be “the end of [her] career”, at which time Dr Pathmanathan became emotional. The precise recollection of what occurred thereafter suffered in consequence. She recalls Dr Pracilio advising that she was to be “suspended indefinitely”, that her lawyers may “come after” Dr Pracilio but that did not concern him. She was advised to appoint a lawyer through contact with MDA which at that time was the professional indemnity insurer for medical practitioners. At this point Dr Pathmanathan was crying and her evidence is that Dr Pracilio stood up from his seat and came over to hug her, which she resisted. The meeting concluded thereafter.

110    Dr Pathmanathan claims to have made a contemporaneous file note of her discussion with Dr Pracilio, although her evidence as to when it was made and if subsequently amended is unsatisfactory. I pause at this point to note that there are very many documents attached to the various affidavits of Dr Pathmanathan that have been edited or which contain commentary as edited by her long after the relevant events. The note contains black and red text and states:

Meeting with Joe Pracilio Head of Anaesthesia & Pain medicine /Director of Medical Services, Head of Clinical Governance (now deputy CEO) (transcript):

Occurred at end of bariatric list (after 5pm) with no support person and no prior warning.

This transcript was written by myself post meeting on the day.

That meeting was the first time we had discussed the incident and he was unaware that others were involved. He had not performed an intrahospital inquiry by this stage but had sought legal advice to immediately suspend me.