HCCC prosecution against Dr Emil Gayed
Dr Emil Gayed was a registered medical practitioner and he held a specialty in obstetrics and gynaecology.
From 1990 onward he practised in NSW regional towns and at some hospitals on Sydney’s northern beaches.
On 6 June 2018 the New South Wales Civil and Administrative Tribunal (NCAT) handed down its decision with respect to the Health Care Complaints Commission’s (HCCC) prosecution of Dr Gayed.
NCAT found that Dr Gayed was guilty of professional misconduct. Additionally, NCAT noted that had Dr Gayed been a currently registered practitioner, his registration would have been cancelled. He was disqualified from re-registering for a further three years from June 2018. A costs order was made against Dr Gayed.
The complaints in these proceedings relate to his professional conduct between 2015 and 2016.
The applicant, the HCCC alleged that Dr Gayed had engaged in numerous incidences of unsatisfactory professional conduct and that together they amounted to professional misconduct.
Dr Gayed did not attend the hearing.
The background to this case is disturbing as it illustrates that Dr Gayed had been the subject of complaints and disciplinary actions since 1997. Dr Gayed was first registered in NSW in 1994.
The following incidents were noted by the tribunal:
|July 1997||A complaint that a patient had been consented for a laparoscopy but had received a laparotomy.|
|October 1997||A complaint that a patient’s bowel, ilium and uterus were perforated in a number of different places by Dr Gayed. The complaint was dealt with by the Professional Standards Committee and Dr Gayed was reprimanded and ordered to undergo a performance assessment and informal counselling.|
|December 1998||There was a complaint from a patient who had required further surgery following Dr Gayed’s surgery to stop the bleeding from an unknown source.|
|8 October 1998||There was a complaint from Southern Area Health Service advising that they had suspended Dr Gayed from practicing in that region, due to a number of concerning incidents involving; breaches of protocols for infection control, adequacy of consents, alteration of medical records, clinical competence, possible visual impairment and communication issues. These were all referred to the Professional Standards Committee.|
|December 1998||There was a complaint that a woman had been left with incontinence after a D&C procedure by Dr Gayed.|
|February 1999||A patient complained that she had been bleeding following a laparoscopy, hysteroscopy and a D&C performed by Dr Gayed.|
|April 2000||There was a complaint that Dr Gayed had stitched a section of a woman’s ovaries to her bowel.|
|May 2000||There was a complaint that intercourse had become painful after a vaginal prolapse repair.|
|August 2001||There was a Professional Standards enquiry in where nine complaints which had been made to the HCCC were considered. Dr Gayed was found guilty of unsatisfactory professional conduct and found to be an impaired practitioner owing to his vision problems. Conditions were placed on his registration.|
|September 2003||North Sydney Area Health Service temporarily suspended Dr Gayed’s Visiting Medical Officer’s appointment due to adverse patient events.|
|March 2004||There was a complaint that Dr Gayed had refused to transfer a premature baby from a regional hospital to a larger hospital with the facilities to care for such a baby. The baby tragically died.|
|September 2004||Dr Gayed underwent a performance assessment and he was found to be at the appropriate standard. The assessors recommended informal counselling about aspects of his performance which could be improved, that occurred on March 2005.|
|March 2006||The Medical Tribunal reviewed Dr Gayed. The conditions imposed in 2001 were removed.|
|March 2007||The NSW Medical Board were notified about a number of clinical incidents and it was noted that Dr Gayed had resigned from his post at Mona Vale Hospital by mutual agreement.|
|March 2007||Dr Gayed was suspended from Delmar Private Hospital due to concerns about the care he provided to three patients. The board had requested that Dr Gayed be tested for impairment.|
|May 2007||There was a complaint that Dr Gayed had perforated a patient’s bowel during a laparoscopy and then failed to recognise the complication.|
|October 2007||A performance assessment found that Dr Gayed’s performance was unsatisfactory in the areas of basic clinical skills, clinical judgement, patient management and practical and technical skills.|
|April 2008||A Performance Review Panel hearing found Dr Gayed to be unsatisfactory and conditions were imposed.|
|July 2009||Dr Gayed performed surgery in breach of his conditions. The Medical Board took no action.|
|August 2009||The mentorship condition was removed by the Performance Committee of the Medical Board.|
|May 2010||There was a complaint about a swab being left behind following surgery.|
|July 2011||There was a complaint that Dr Gayed did not obtain informed consent prior to removing three quarters of a patient’s cervix.|
|October 2013||A performance re-assessment review found that Dr Gayed was unsatisfactory in the areas of basic clinical skills, clinical judgement, patient management and practical and technical skills. It was recommended that there be a hearing and regular ophthalmological assessment.|
|December 2013||There was a complaint that Dr Gayed had used non-dissolvable stitches following a Caesarean section but did not tell the patient, she required surgery to remove the stitches one year later.|
|October 2014.||A Performance Review Panel found that Dr Gayed was at the appropriate standard. His existing conditions were continued.|
|March 2015||There was a complaint that a patient had developed a hernia following a laparotomy which had required further surgery.|
|November 2015||A patient complained after she suffered from complications after Dr Gayed had not recognised, that he had severed her ureter during surgery.|
|December 2015||There was a complaint that a patient had received inappropriate treatment for retained placenta following child-birth.|
|February 2016||There was a complaint that Dr Gayed had performed a laparotomy in breach of his conditions.|
|March 2016||Hunter New England Local Health District suspended Dr Gayed from his role at Manning Base Hospital.|
This catalogue of prior problems was the background to the case.
The HCCC complaints that were prosecuted
The complaints related to seven different women.
There were multiple complaints for many of the women.
All the complaints related to surgery at Manning Base Hospital, Taree.
Interestingly, Dr Gayed did not personally appear at the tribunal. This meant that he was not cross examined, this did not go in his favour.
The following three examples are indicative of the issues the tribunal reviewed:
Patient A had a large uterine fibroid. She had a very complex medical history and any surgery was likely to be associated with complications. Patient A, herself, was concerned about undergoing surgery and she had expressed a wish that she should be transported to the John Hunter Hospital, Newcastle (JHH) if more complex surgery was required.
Patient A was consented for a myomectomy, however the words hysterectomy were also included with some question marks on the form. Prior to surgery Patient A specifically restricted her consent to the myomectomy.
Dr Gayed was counselled by Dr Roberts the head of Obstetrics and Gynaecology that Patient A should be transferred to the JHH, due to her complex presentation.
Dr Gayed performed a hysterectomy and Patient A suffered a very serious haemorrhage and was at serious risk.
Dr Gayed’s notes were sparse, there was no record of him having examined her in the records. There were no records of any attempts or advice concerning more conservative treatment.
It transpired that Dr Gayed had planned to do a hysterectomy all along.
Dr Gayed was criticised for:
- Not documenting his examination of Patient A in the records;
- Failing to recommend conservative treatment;
- Not clearly describing the risks of possible complications on the consent form;
- Not correctly describing the limits of Patient A’s consent on the consent form;
- Performing the hysterectomy when consent had been withdrawn;
- Going against Dr Robert’s advice that the Patient be transferred to JHH;
- Failing to identify the large fibroid during surgery – which others present could identify;
- Failing to achieve haemostasis and writing inconsistent records about this.
Dr Geraghty the expert for the HCCC said that Dr Gayed;
“Showed no capacity to reflect on the potential difficulty of the procedure, the possible need for the skills of other doctors such as a general surgeon and the recognition that longer experience does not necessarily equate to better skills.” 
Patient B’s case related to the failure of Dr Gayed to undertake an appropriate clinical examination in relation to an endometrial ablation. Patient B had gone to Dr Gayed for management of a vaginal polyp.
Dr Gayed conducted an ultrasound in his rooms, he relied on this ultrasound even though it was found to lack specificity in relation to the size, number and position of the uterine fibroids. He believed there were fibroids, but these were not shown on his ultrasound.
Dr Gayed did not refer Patient B for a formal ultrasound. He also did not notice the endometrial thickness and the nature of the ovaries.
Dr Gayed was criticised for offering endometrial ablation without offering alternative treatments and for recommending it as treatment for a condition for which the patient had not requested an opinion.
Dr Geraghty thought the polyp was likely to be a skin tag that did not require surgical removal.
Dr Gayed was criticised for not performing a diagnostic hysteroscopy prior to the ablation.
Patient B was 10 weeks pregnant when Dr Gayed carried out the endometrial ablation procedure. His failure to detect the pregnancy prior to the surgery was criticised by the tribunal.
- When Dr Gayed discovered the pregnancy, he did not refer Patient B to a feto-maternal medicine specialist but rather told Patient B and her husband, that the only option was a termination, despite the fact that, there was no evidence of physical damage to the foetus. The tribunal was critical of this approach.
- Dr Gayed’s advice about the termination was based upon presumed but unproven harm.
- Dr Gayed offered to pay for the termination himself. The tribunal was critical of this action.
- Dr Gayed failed to report the discovery of Patient B’s pregnancy to the Director of Obstetrics and Gynaecology in accordance with NSW Health Incident Management Policy (PD2014_004).
- The tribunal noted;
“…the complaint is the practitioner failed to appropriately manage the care of Patient B after the discovery of the pregnancy by offering to pay for the termination of the pregnancy and associated travel expenses for Patient B to attend Sydney for the termination and made arrangements for the termination where he had failed to identify the pregnancy during the procedure on 11 November and recommended the termination as the only option and did not seek advice or guidance from supervisors or other experienced practitioners prior to making the arrangements.”
Patient F’s case involved Dr Gayed’s use of a suction curettage to manage her post-partum haemorrhage. The tribunal was critical as this treatment was not clinically indicated and more conservative treatments such as; admission, rest, analgesia and antibiotics should have been attempted first.
Patient F had presented to Dr Gayed with retained products of conception. Dr Gayed performed a suction curette. Afterwards Patient F was in pain and bleeding heavily, but Dr Gayed discharged her.
Patient then suffered a serious bleed a few weeks later. Dr Gayed was called. He operated on Patient F. Following the procedure Dr Gayed told Patient F that her cervix was damaged and that he had needed to do a cancer operation because he thought she had cancer. He told her she would not be able to have more children.
Dr Gayed’s receptionist called Patient F two weeks later to advise her she did not have cancer. Patient F returned to her usual obstetrician, Dr Walkom, who had delivered her baby. Dr Walkom told Patient F that her cervix was closed and there was no opening for her to menstruate. He advised that the cervix was fine when he delivered the baby but had been damaged during Dr Gayed’s curettage.
The tribunal was very critical of Dr Gayed’s management of Patient F, specifically:
- There was no discussion about the risks of post-partum curettage – perforation, scarring and potentially Asherman’s syndrome;
- Conservative management would have been preferable;
- No evidence in the records of a physical examination;
- Consent for the LLETZ and cone biopsy was based upon the cancer diagnosis, which was erroneous;
- Dr Gayed made Patient F very concerned after his cancer diagnosis;
- Dr Gayed failed to transfer Patient F to a tertiary hospital that could better deal with the malignancy alluded to by Dr Gayed;
- The procedure was not adequately explained to Patient F and therefore there was no consent; and
- Dr Gayed failed to refer Patient F to a gynaecological oncologist.
The review by Ms Gail Furness SC
Given the long history of complaints against Dr Gayed and concerns about the adequacy of the responses to those complaints. A review was undertaken by Ms Furness SC.
The review was in two parts, the first part was handed down in October 2018. The second part was handed down in February 2019. You can view the full report here.
The October 2018 Inquiry
Three key issues arose during the inquiry:
- (i) The powers, policy and practice in relation to information sharing between the Medical Board (Now Medical Council) and public and private health organisations.
- (ii) The management of complaints against Dr Gayed in the performance assessment program and the manner in which the assessments were carried out.
- (iii) The monitoring of Dr Gayed and the performance of the administrative functions by the Medical Board.
Information Sharing – suggested areas for amendment
- Employers are not required to notify the regulator of a decision to withdraw or restrict privileges. This is particularly problematic if a practitioner practises across multiple facilities.
- s99(2) of the Health Service Act 1997 obligates a practitioner to report any finding of unsatisfactory professional misconduct to any public health organisation, there is no obligation with respect to private organisations.
- The Medical Council should be required to notify employers or accreditors of a decision by the Medical Council to suspend a doctor.
- The Medical Council should be required to share information with employers or accreditors about a doctor’s compliance with conditions of registration.
- The Medical Council should have a discretion to provide a copy of a performance assessment to any person it sees fit.
- Performance Assessors need to be provided with all relevant and probative information.
- Where the Medical Council does not accept a recommendation of the Professional Standards Committee a prudent decision maker should record the reasons for doing so.
- Performance Assessors should observe the practitioner doing the procedures that were performed poorly in the past.
- The focus should be on the area of concern but if other issues arise, they too should be examined.
The Medical Board did not adequately assess Dr Gayed’s ophthalmological problems. His ophthalmologist repeatedly asserted that his telescopic work needed to be assessed by a gynaecologist. This was not done.
The Medical Board later agreed to the impairment condition being removed without carrying out the recommendations by the ophthalmologist of the effect of the impairment on Dr Gayed’s clinical practice.
Monitoring of compliance was patchy and there was confusion about what the precise conditions were. The distinction between orders and recommendations was lost.
The supervision of Dr Gayed by the Performance Review Panel in April 2016 did not occur and there was no monitoring by the Medical Council to ascertain whether it was being done.
The Medical Board was tardy in implementing a number of decisions. The first performance assessment occurred 12 months after the Medical Board had identified it as urgent. In 2012 the performance assessment occurred four years after the Performance Review Panel’s direction that a re-assessment should take place.
Performance assessments should be tailored and the assessors briefed to ensure the relevant area of concern is addressed.
The February 2019 Inquiry Report – Conclusions:
“In most years from 1999 to 2016 there was a complaint or concern raised about Dr Gayed’s clinical treatment of a patient. They were expressed by nursing staff, anaesthetists and other medical practitioners as well as, more recently, patients themselves.”
The complaints continued to arise despite the interventions of the Professional Standards Committee, Medical Board and Medical Council and the effective termination of Dr Gayed’s contract at three hospitals: Cooma in 1999, Delmar in 2007 and Mona Vale in 2007.
“Of most concern is that a repeated theme has been the unnecessary removal of organs, unnecessary or wrong procedures, perforations of organs and reluctance to transfer to tertiary facilities.”
Ms Furness’ extensive review uncovered 50 women whose treatment warrants a complaint to the HCCC.
“The health system failed each of these women.” 
What went wrong
- Dr Gayed was a VMO – he saw his patients in his private rooms. It was there that he carried out assessments, examined patients and made diagnoses. Those women were operated on at Manning Base Hospital. Ms Furness SC noted;
“They often returned to his private rooms and some were encouraged not to attend Manning Hospital after complications arose. His medical records were not available to the hospital; nor were any test results. It follows that the extent to which oversight could have occurred, if there was a view it should have, was limited.”
Ms Furness SC commented that was concerning that a public hospital provided facilities for a VMO to operate on women without the hospital having the capacity to ensure that those patients were being cared for at the standard expected in a public hospital.
The public health system should have enough information about all patients who undergo any procedures in its hospitals to be satisfied that the procedures are being performed to an appropriate standard.
- Mechanisms for oversight were not used
VMOs’ performances were meant to be the subject of regular reviews. Dr Gayed was not reviewed and there were no clinical supervision plans of him.
Ms Furness SC commented;
“Aggregate reviews of incidents recorded on the IIMS were not completed or not documented. The doctors did not record concerns on the IIMS at all and the nurses did so selectively. There was no evidence available to me that, before the arrival of Dr Roberts, there was any review of the IIMS undertaken to enable any pattern to be detected or reviews followed up”
- There was a lack of senior staff to provide supervision and monitoring. A Director of Obstetrics and Gynaecology was not appointed until April 2015. Ms Furness SC noted that:
“It is no coincidence that IIMS reports and other complaints escalated from mid-2015. Dr Bourke told me that there were discussions among colleagues and no reporting because ‘there was no-one to report to’.”
Ms Furness was critical of the Director of Clinical Services who responded to IIMS reports concerning Dr Gayed. She considered there were occasions where he was:
“unduly favourable to Dr Gayed, did not follow policy and minimised the seriousness of concerns raised.”
- The hospital was a rural hospital and relied on Dr Gayed to provide its obstetric and gynaecological services.
Ms Furness SC noted that LHDs need to identify these situations particularly in regional areas and ensure there is external oversight of the performance.
- The ‘Morbidity and Mortality’ meetings together with other mechanisms to detect poor performance were not sufficiently sensitive to pick up Dr Gayed.
- There was an attitude that what Dr Gayed did outside Manning Hospital was irrelevant to the experience of Manning Hospital. This meant that external reports were not used to trigger internal risk assessments about Dr Gayed’s ongoing performance.
Finally, Ms Furness considered that hospital staff relied too heavily on the Medical Board to provide oversight and to impose conditions on Dr Gayed. There was an assumption that because Dr Gayed’s performance did not change after the intervention by the Medical Board, that his performance was satisfactory.
Ms Furness SC noted that:
“Staff became desensitised to his poor performance. Dr Wills told me that he relied on the Medical Board / Medical Council to determine whether Dr Gayed was fit for practice and did not consider that to be his role.”
It was noted that while the Medical Board / Medical Council had the responsibility to manage Dr Gayed, that did not stop the hospital from properly reviewing Dr Gayed’s performance on a regular basis by a clinician with the same expertise.
Ms Furness SC stated:
“I recommend that governance processes of Hunter New England Local Health District be reviewed to ensure that IIMS reports are monitored at a local health district level to enable issues of patient safety relative to a particular clinician to be identified and to ensure that relevant staff have undertaken the reviews and investigations which the IIMS records as to be or having been undertaken.
I recommend that public hospitals which have arrangements with visiting Medical Officers to undertake procedures on their private patients, using public facilities, should establish mechanisms to ensure access to sufficient information about those patients to be satisfied that the procedures are being performed to an appropriate standard.
The hospital was reliant on Dr Gayed providing most of the obstetrician and gynaecologist services. Local health districts need to identify these circumstances, particularly in regional rural and remote areas, and ensure there is external oversight of the performance of medical practitioners providing such services.”
- The NSW Police are now investigating Dr Gayed.
- The review identified more women who might want to report a complaint to the HCCC.
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 Health Care Complaints Commission v Gayed  NSWCATOD 165, 140.
 Health Care Complaints Commission v Gayed  NSWCATOD 165, 249.
 G B Furness SC Review of Documentary Material in relation to the Appointment of Dr Gayed, Management of Complaints about Dr Gayed and Compliance with Conditions Imposed on Dr Gayed by Local Health Districts (21 January 2019), 1246.
 Ibid, 1248.
 Ibid, 1251.
 Ibid 1252.
 G B Furness SC Review of Documentary Material in relation to the Appointment of Dr Gayed, Management of Complaints about Dr Gayed and Compliance with Conditions Imposed on Dr Gayed by Local Health Districts (21 January 2019), 1255.
 Ibid 1260.
 Ibid 1261.
 Ibid 1268.
 G B Furness SC Review of Documentary Material in relation to the Appointment of Dr Gayed, Management of Complaints about Dr Gayed and Compliance with Conditions Imposed on Dr Gayed by Local Health Districts (21 January 2019), 1274- 1276.