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The serious issue of self regulation for surgeons in Australia - does the system work? -

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TONY JONES, PRESENTER: Tonight, a story that raises some serious issues for the medical profession. Does the system of self-regulation overseeing surgeons in Australia work and is that system open to abuse?

Our story focuses on a French spinal surgeon who arrived in Townsville in 2003. His problems began when he moved into private practice. Within a short time he found himself the subject of repeated anonymous complaints and medical audits.

The ongoing scrutiny undermined his capacity to practice and eventually his local hospital decided that without the support of his peer group, he could no longer operate. He became deeply depressed, contemplated suicide and ultimately left Australia.

The question is: how did this happen? Was he deserving of scrutiny or was his treatment professional harassment?

Reporter Steve Cannane has been trying to answer those questions.

STEVE CANNANE, REPORTER: Dr Richard Emery has what seems like an idyllic lifestyle. He and his family live 10 minutes from the beaches of the French Riviera and 30 minutes from the ski fields of the French Alps.

But 12 months ago, it was a different story. A series of complaints by a group of senior surgeons in North Queensland drove the French doctor out of Townsville and drove him to the edge of taking his own life.

CELINE EMERY, RICHARD EMERY'S WIFE: One day I came home and I got a text message saying, "Take care of the kids." And I thought he was gone for a run. And when I got the message, I understood straight away that he had gone somewhere.

STEVE CANNANE: Tonight for the first time, Richard Emery and other doctors speak out about the culture inside the medical profession and how a group of senior surgeons in North Queensland was able to prevent him from making a living in Australia.

JOHN STOKES, FMR DIR., MEDICAL SERVICES, MATER HOSPITAL, TOWNSVILLE: One surgeon told me directly in private that I should run him out of town.

ROGER WATSON, CONSULTANT IN REHAB. CENTRE: He has doing things twice as fast and procedures the others couldn't do and they got terribly jealous.

STEVE CANNANE: Dr Richard Emery moved to Townsville in 2003 when the city was in need of spinal surgeons. After five years working at Townsville Hospital, he decided to move into private practice. He says then he received a hostile phone call from Dr Eric Guazzo, a local surgeon who was then president of the Neurosurgical Society of Australasia.

RICHARD EMERY, SPINAL SURGEON: And he basically said, "If you move to private practice, you won't be able to pay for surgery in no time. So go back to France."

STEVE CANNANE: Dr Guazzo denies having had any conversation of this nature with Dr Emery.

RICHARD EMERY: I ignore what he said and move to private practice. And after three months, I was (inaudible) ... from an anonymous complaint saying that my level of complication was far too high.

STEVE CANNANE: It was the first to be the first of many audits. Dr John Stokes is a former director of medical services at the Mater Hospital in Townsville.

JOHN STOKES: There were complaints about his blood transfusion rate and we audited that and it was normal. He came to work as a BMO. There were complaints about his use of item numbers and we audited that and it was no more abnormal than other surgeons use. There was complaints about his complication rate, so we audited a year of his surgery. And there were nothing out of the ordinary in the hospital related to his surgery.

STEVE CANNANE: After Richard Emery had passed these audits, another surgeon made a complaint about him to APRA, the national body that regulates all health practitioners. That meant another audit and being placed on conditional registration.

ROB KURU, SPINAL SURGEON: The colleagues locally felt that he wasn't or that they weren't experienced enough to comment on the type of work he was doing, so Richard arranged for that to be undertaken by surgeons who did a similar kind of work.

STEVE CANNANE: Dr Rob Karu and another surgeon, Dr Bryan Ashman, reviewed at least 18 months' worth of operations.

ROB KURU: The data that Richard supplied to us when we reviewed the types of procedures that he was doing, they were appropriate for someone doing complex spinal reconstructive practice and the complication rate, we found, was in published and acceptable limits if you're doing that kind of work.

STEVE CANNANE: So there wasn't an unusual amount of complications?

ROB KURU: No.

STEVE CANNANE: But this wasn't good enough for the local craft group of neurosurgeons and orthopaedic surgeons. In February last year, Richard Emery attended a meeting with the group. He presented the results of all of his operations over the previous six months as part of a regular peer review process.

So Richard Emery's presentation, did it have an unusually high complication rate attached to what he was saying?

JOHN STOKES: No. In my view, it didn't and that's supported by the view of the two AHPRA supervisors who had both seen the audit before.

STEVE CANNANE: Both Dr Richard Emery and Dr John Stokes say they can't recall any major criticisms being raised at that meeting, but the craft group of surgeons used Dr Emery's presentation as the basis for another complaint to AHPRA. Lateline has obtained a copy of that letter. It says in part, "We all feel that Dr Richard Emery's rate of major clinical complication was well above what would be acceptable surgical practice. As a craft group we have had ongoing concerns with regards to Dr Emery's practice, but the latest audit presentation is deemed unacceptable by us."

The letter is signed by nine local surgeons, including Dr Eric Guazzo. One surgeon abstained.

Lateline has been told only five members of the craft group witnessed Dr Emery's presentation that led to this critical letter of complaint.

Were all the people who signed that letter at the meeting?

JOHN STOKES: No.

STEVE CANNANE: Is that a problem?

JOHN STOKES: It's a problem for them.

STEVE CANNANE: Why?

JOHN STOKES: They didn't see the audit, they don't know what's in it and they didn't have a copy of the audit. Therefore, they can't make a judgment about the audit.

STEVE CANNANE: Dr Richard Emery is disgusted that four of his colleagues would condemn his work without seeing his presentation.

RICHARD EMERY: The audit is a private document which are not available. Unless they look at my computer without me knowing, they cannot have access to it.

STEVE CANNANE: Did Eric Guazzo see your audit?

RICHARD EMERY: No.

STEVE CANNANE: Dr Eric Guazzo would not speak with Lateline on camera, nor would any of the other eight surgeons who signed this letter of complaint. A statement from his lawyers said, "Dr Guazzo categorically denies conducting any conversation with Dr Emery, in 2008 or otherwise, in which he made any comments that could be taken or misconstrued as threats. Dr Guazzo has at all times conducted himself professionally and in accordance with his (legal and ethical) professional obligations."

Dr John Stokes believes the audit process was used to target Dr Richard Emery.

JOHN STOKES: He wasn't given a fair hearing. He wasn't given help, which you expect out of audit. In fact, the audit that was finally done was used against him in what's called - the term a sham audit, where audit is used to harm a person. The intention of medical audit is to improve care and this wasn't used in an attempt to improve care.

STEVE CANNANE: Despite being appalled by the process, Dr John Stokes had to tell Richard Emery that without the support of his peers, he could no longer operate at the Mater.

JOHN STOKES: If something happened, a patient would reasonably be able to say, "Well, the hospital and yourself, Dr Emery, were practising without support." So it's an easy thing for doctors to do, to withdraw support and put a person in a regional centre at great risk.

STEVE CANNANE: So that then opens up the hospital to an insurance claim, does it?

JOHN STOKES: Yes.

STEVE CANNANE: Is that fair, that you can have your fate in the hands of people who potentially are competitors?

JOHN STOKES: That's not natural justice.

STEVE CANNANE: Lateline has obtained an independent assessment of Dr Emery's credentialing, written for the Mater Hospital by Dr John Quinn, a principal advisor to the Council of the Royal Australasian College of Surgeons. The report is highly critical of Dr Emery's peer group.

JOHN QUINN, INDEPENDENT ASSESSOR (male voiceover): "To undertake, assess and monitor spinal surgery at Mater Hospital Townsville requires cooperation, collegiality, peer support and professionalism from all those performing such surgery. Regrettably, these qualities seem to be lacking at your hospital at this time. ... this seems to be personality driven more so than scientifically or surgically driven."

STEVE CANNANE: By March last year, Richard Emery had had enough. He'd been subjected to continuous complaints, medical supervision, restrictions on his practice, and now, his livelihood was being taken away from him. He headed to the top of Castle Hill, and in his words, was ready to jump.

CELINE EMERY: I knew he was running up Castle Hill from time to time and I really hoped that he was up there, I really did. Otherwise I'd - yeah. So I drove up there and couldn't see him, I drove up and up and I - and I thought it was a question of time. I kept calling him. He wouldn't answer. And I was really hoping it wasn't gonna be too late. And I found him. I found him and thank God, he was just sitting, sitting. And I told him, I said, "It's all OK. We'll just go back home. Just go back home and everything will be fine."

STEVE CANNANE: Earlier this year, Richard Emery and his Australian family moved to France. For him, life has improved, but the same can't be said for the patients left behind. Michael Johnston was about to be operated on in March last year when Richard Emery's privileges were taken away.

MICHAEL JOHNSTON, PATIENT: It was devastating, beyond belief. I'd waited 17 years to get my life back. We were two months away from it happening and it was taken from me. We were basically the carnage. We were just left behind.

STEVE CANNANE: Michael Johnston has a rare condition where the body attacks itself, leaving him with a spine that can't support him.

MICHAEL JOHNSTON: I've got six grandchildren. The oldest is 17 years now. And I've never, ever been able to pick them up - ever.

STEVE CANNANE: Michael Johnston is a designer and an inventor, but these days, he can't stand up in his workshop for more than an hour at a time.

MICHAEL JOHNSTON: I can't live up to my responsibilities with my family. And I've always been a very proud man, what I've achieved in the workforce, and it's all gone. And it's not necessary. And nobody seems to care. Richard's the only one that cares.

STEVE CANNANE: After previous operations that had failed, Richard Emery offered to repair the damage for free.

MICHAEL JOHNSTON: And he said, "I tell you what, I'm going to perform the surgery for you free of charge. This is my Christmas present to you. No expenses."

STEVE CANNANE: There have also been repercussions for Dr John Stokes. He believes he's been targeted for speaking out against unfair process.

JOHN STOKES: In that same year, I was notified to AHPRA vexatiously on two occasions. There is almost certainly a link somewhere in that. I've had a good, long practice in medicine without any complaints about me. And I suspect there was some ulterior motive of stopping me be director of medical services.

STEVE CANNANE: John Stokes was badly injured in a cycling accident that killed his friend Sue Bell. That accident was cited in a notification against him.

So they even tried to allege that you were brain damaged, didn't they?

JOHN STOKES: Yes. That was the most hurtful thing of all. A good friend of mine died, who I tried to resuscitate at the roadside. And I survived with major injury, but she died, unfortunately. And that was used against me to claim that I was mentally incompetent and should be deregistered.

STEVE CANNANE: Since John Stokes recorded this interview, he's been subjected to another complaint, this time to the Minister for Health.

Local Liberal MP Warren Entsch says he's appalled by what's happened in Richard Emery's case and wants the complaints process overhauled.

WARREN ENTSCH, LIBERAL NATIONAL MP: If it's shown that individuals are doing this and there's no basis for it or it's done out of malice or it's done out of greed, those individuals that have made those allegations need to be held responsible for their actions.

STEVE CANNANE: Warren Entsch was on the parliamentary committee that produced the report Lost in the Labyrinth, which came up with 45 recommendations around registration and support for foreign-trained doctors. It seemed to go nowhere with the then Health Minister Peter Dutton.

WARREN ENTSCH: Unfortunately, I really got - I got no real response, you know, other than say that my concerns had been acknowledged. Now that was in 2014. Since that time, I've written again, I've sent that letter to the new minister, Sussan Ley, and I've asked her to actually focus on this. First of all, we do need to get a response to those 45 recommendations, and secondly, I was hoping that we could've got kept Dr Emery in Australia. Unfortunately, he's left. He's now in France.

STEVE CANNANE: Even though Richard Emery has moved back to France, he is still under investigation from AHPRA.

CELINE EMERY: Well, first of all, I'd like Richard's name to be cleared, just for our own serenity of mind.

STEVE CANNANE: Celine Emery says she knows of other similar cases in other parts of Australia.

CELINE EMERY: The other thing is, we are aware that some other surgeons, foreign-trained surgeons, are in a similar situation and I wouldn't want their families to be in the same situation as we went through.

TONY JONES: Lateline understands the ACCC is currently investigating the case involving Richard Emery. The commission wouldn't comment on that investigation. We also contacted AHPRA, the Mater Hospital, the 10 members of the craft group and the Royal Australasian College of Surgeons for interviews. None was available.