In Spencer v Medical Board of Australia (Review and Regulation) [2023] VCAT 944 Dr Spencer asked the Victorian Civil and Administrative Tribunal (VCAT) to review a decision by the medical board to take immediate action to suspend his registration as a medical practitioner. As with many cases reported here, the time it takes for these things to be decided is frightening.  

Dr Spencer’s wife died in January 2015 ([2]). Questions were raised about Dr Spencer’s potential involvement in her death ([3]). It was admitted that both Dr and Mrs Spencer were IV drug users. In March 2022, 7 years later, Victoria police advised the Medical Board that no charges against Dr Spencer were being contemplated ([7]).  Mrs Spencer’s death was then referred to the Coroner – see Inquest into the Death of Mayumi Spencer (8 June 2023). The Coroner determined that there was evidence that Dr Spencer was guilty of ([9]):

… negligent manslaughter due to the delays in seeking urgent medical assistance and Dr Spencer’s duty of care to [MS] upon discovering her in a state requiring urgent medical assistance.

The coroner referred the matter to the Director of Public Prosecutions. At the time of this decision (23 August 2023) the DPP had not communicated a decision to either prosecute, or not ([10]).

As a result of the coroner’s determination, the medical board took immediate action to suspend Dr Spencer’s registration with effect on 11 July 2023 ([13]). It was that decision that is the subject of appeal to VCAT.  Of course an appeal to VCAT may take some time so Dr Spencer also sought an order to ‘stay’ the suspension decision ie to allow him to practice until the VCAT review is complete. It was that application, the ‘stay’ application that is the subject of this decision. Granting a ‘stay’ is serious; if the board has determined that there is a risk to the public that warrants immediate action, allowing a stay would allow the practitioner to continue to practice until the review is complete. If the review finds the decision was correct a practitioner who poses a risk to the community will have been allowed to practice in the interim. On the other hand, immediate action denies a practitioner the opportunity to earn their living before allegations have been established and where, as here, the allegation is criminal in nature, where the practitioner is entitled to the presumption that he is innocent until his guilt has been established.  And at this stage he has not been charged with any offence.

In this case however ‘the Suspension Decision was not based on public safety but rather the public interest in protecting the reputation of the profession’ ie there was no suggestion that Dr Spencer was a risk to other patients. The risk that the immediate suspension was designed to manage was the risk to the reputation of the profession by allowing a person who is suspected of being involved in his wife’s death due to his failure to render appropriate medica care ([21] and [32]).

What did he do, or not do?

The issue of interest to readers of this blog is Dr Spencer’s alleged failings.  At [55] Acting Deputy President Dea said:

The Coronial Findings recorded that Spencer stated that, at around 4:00 am on 17 January 2015, MS:

‘had a fit and began vomiting.  He attempted to resuscitate her.  Whilst doing so, Mr Spencer formed the belief that there was a blockage in her throat and consequently attempted to perform a cricothyroidotomy on her using a kitchen knife and pen.  This procedure was unsuccessful.’

A call to triple zero was made at 7.38am.  It was that delay that forms the basis of the allegation of manslaughter by criminal negligence.  An expert gave an opinion to the coroner that they:

…would expect a very early response (if not the first) to be the calling of an ambulance.  More specifically, I would consider it reasonable, given Peter Spencer’s medical training and concern for aspiration of vomitus to undertake the actions [Dr Spencer described] to attempt to clear the airway before calling an ambulance.  However, these actions can be performed rapidly and should be abandoned quickly if not successful, leading only to a very short delay (less than a minute or two) before calling the ambulance.

[As an aside, anyone who’s done first aid recently (but perhaps not in 2015) knows the Action plan is DRS ABCD where the ‘S’ stands for ‘Send for help’, after checking for Danger and a Response and before commencing CPR.]

Spencer argued ([61])

I provided Medical assistance to my wife in the form of CPR, immediately when I arrived at her body.  She was dead when this commenced.

I called out for help several times and this was presented by a neighbour in the police report.

I did not have access to phones as was mentioned in my sworn statement and in extensive CCTV footage and phone records.

I can not attempt to resuscitate my wife and search for phones at the same time.

After attempting to resuscitate my wife for a number of hours I stopped and called emergency services.

And at [62]:

My wife had the phones in her bag.  …

I did not know where she put the phones/ her bag in our apartment.  I was not able to conduct a search of the house whilst also performing CPR…

Secondly, I have already stated and it is known I had taken IV cocaine at the same time as my wife.  I was momentarily incapacitated by this and not able to attend to her immediately. This was only for a very brief period.

When I was able to move, I performed CPR as soon as I was able to as she had no pulse. To provide immediate resuscitative efforts is the correct decision, as any significant downtime results in brain / cardiac damage and immediate efforts have the highest success rate.

When I did look for the phones it took some time to locate them, further reinforcing this was the right decision.

I called out for help several times and this cry was heard by neighbor’s [sic] and is mentioned in the police report…

Toxicology reports also showed propranolol and other alcohol and Cocaine metabolites in her system, which increase cardiac arrhythmia potential, as well as making resuscitative attempts more difficult…

I performed CPR till exhaustion as I was in shock and loved my wife dearly and did not want to accept her passing… I stopped CPR when I realized and accepted the futility of the situation and conducted a search of the apartment, eventually finding the phone and called an ambulance.

There is no reason to believe negligent manslaughter occurred.

Calling the ambulance any earlier would not have changed the outcome, given all that has been stated, with particular reference to downtime.

Apart from arguing that his response was reasonable in the circumstances and therefore could not be negligent manslaughter, he also argued that there was no need for ‘immediate action’. First the events took place 8 years earlier and the Board were made aware of the event when it happened.  Spencer did not practice between 2015 and March 2021. In March 2021 he had been granted conditional registration and had complied with those conditions ([4]-[6]). He had ‘regular psychiatric evaluations, and drug testing’ and ‘his clinical performance had been evaluated by a supervisor over six months and he was marked as completed and satisfactory by his Supervisor.  As a result he has been shown to be fit to practise and to have no impairments that warrant suspension’ ([67]).

The Board confirmed that the issue was the reputation of the profession rather than particular risk. They argued (at [73]) (text in square brackets added by Acting Deputy President Dea; emphasis added by me)

The [Coronial Findings] render [Spencer] a substantial threat to public confidence in the medical profession, should he be permitted to practise. The [Coronial Findings] alone weigh heavily in favour of suspension until the outcome of the referral. The fact of referral to the DPP and possible criminal prosecution, reinforces the risk.

In making her decision Acting Deputy President Dea recognised that it was not her job to resolve the factual issues or determine whether or not Spencer was guilty of the offence that may be alleged.  The issue for her was whether there were serious issues that VCAT would have to consider, in due course, when reviewing the decision to suspend Spencer’s registration ([77]-[79]). 

Weighing against the decision to grant the stay is ([82]-[83]):

The existence of the referral to the DPP, related to the manner in which Spencer, as a medical practitioner, applied his medical training and skill in an emergency situation raise serious questions about Spencer’s conduct, the reputation of the profession and public confidence in that profession if he were to be allowed to continue to practice.

The fact of the varying accounts of what occurred on the night MS died given by Spencer also raises concerns about the reputation of the profession and public confidence.

Further (at [92]):

… the greater public interest lay in not staying the Suspension Decision.  The fact the DPP has yet to make a determination as to whether any criminal charges are to be laid together with the Coronial Findings which led to the referral satisfied me that the public confidence in Spencer and the profession as a whole would be damaged if he were entitled to practice pending the hearing of the application and while that state of uncertainty continues to exist.

Even though there would be a delay in hearing the application for review (it is unlikely to be listed before April 2024) Acting Deputy President Dea said (at [96]):

While I gave some weight to the impact on Spencer of the likely delay in the review application being heard, in the face of the other factors and given the circumstances which led to the referral to the DPP, I agreed with the Board that Spencer’s private interest ought not to prevail.

The application for a stay was refused ([97]).

Commentary

There are two issues that deserve comment. The first is the review of performance of CPR. It has been said on this blog and in other places, that the risk of legal liability over CPR is so small as to be almost non-existent. This is the first case that I am aware of where anyone has been criticised, let alone charged, over their CPR performance though there have been other cases where people have been prosecuted for failing to seek appropriate assistance (see for example R v Stone and Dobinson [1977] QB 354; R v Taktak (1988) 14 NSWLR 226; see also Paul Williams and Gregor Ubas ‘Heroin Overdoses and Duty of Care’ (2001) No. 188 Trends and Issues in Crime and Criminal Justice (Australian Institute of Criminology).

Spencer owed a duty of care to his wife both by virtue of their relationship and their shared activity in taking cocaine. The issue was, and will be, whether his CPR performance and his decision to continue CPR rather than stop to try to find a way to call for help was so far below the standard to be expected of a reasonable medical practitioner as to warrant criminal punishment (see Medical mistake and manslaughter (April 10, 2022)).   Of relevance here will be Spencer’s training as a medical practitioner and in particular as a specialist in ‘respiratory and sleep medicine’ ([1]). If Spencer is convicted of negligent manslaughter, it will be an interesting case study on the need to reinforce calling for assistance as a critical early step in the resuscitation process.

The second issue that I comment on is the adage ‘justice delayed is justice denied’.  The issue before VCAT was whether VCACT should stay the immediate action taken by the board. Immediate action is itself only an interim measure to protect the public interest until a relevant complaint is made and determined by a committee or a relevant Tribunal. The timeline of this event looks something like:

• MS dies in January 2015 ([2]).
• Spencer agrees not to practice from January 2015 until approved by the Board. His registration lapses in September 2015 ([4]).
• He is granted conditional registration in March 2021 and has complied with the conditions of his registration ([6]).
• His registration was suspended in July 2023 after the coroner’s referral to the DPP ([13]) In 8 years police laid no charges; the DPP is yet to decide to lay charges ([11]).
• He applies for a review of, and a stay of the immediate action. The stay is refused on 22 August 2023.
• The review will not be heard until April 2024 ([94])
• The review will simply determine whether the immediate action should stand. If the review is granted, he will be entitled to practice unless and until a finding warranting his suspension is made by a relevant Tribunal. That would depend on a complaint being made either that his conduct – in 2015 – was below the standard to be expected of a practitioner OR that he is convicted of a criminal offence.  Given that no charges have yet been laid one can imagine that if he is charged, it would take another couple of years before they would be resolved.

If the immediate action stands, and Spencer is tried but acquitted of manslaughter say by the end of 2025, he will have been unable to practice for some 10 years. If we accept that his behaviour as an IV drug user posed a risk to public safety, then some period out of practice was a good thing. He did not practice between 2015 and 2021 and has undertaken psychological and drug treatment and complied with conditions on his registration since March 2021.

The real question in my mind is how did it take Victoria police 8 years to decide they were not going to charge him and then refer the matter to the coroner, and how did the coroner come to the opposite decision to police and recommend charges? And how long with the DPP take to decide whether to bring charges?  Spencer’s conduct in 2015 may be a worry but it is outrageous that it has taken 8 years to get to what is simply an interim step in a process that has still a long way to go.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.