I have previously reported on the case of Dr Spencer – see Doctor suspended over CPR performance (August 23, 2023).  The unfortunate matter continues with the latest instalment being the decision of the Victorian Civil and Administrative Tribunal (VCAT) in Spencer v Medical Board of Australia (Review and Regulation) [2024] VCAT 833.

To recap the history, Dr Spencer’s wife died in January 2015.  She died as a result of taking cocaine and other drugs.  When Dr Spencer found her he was also affected, having himself consumed cocaine.  He commenced CPR and continued for several hours. Upon exhaustion he stopped, looked for a phone and rang 000.  The death was investigated by police who took no action. The matter was referred to a coroner who formed the view that Dr Spencer’s conduct on the night might amount to manslaughter by criminal negligence and the matter was referred back to the DPP. The DPP have again confirmed that no criminal charges will be pursued.

In the meantime, to quote from my earlier post (references omitted):

  • Spencer agrees not to practice from January 2015 until approved by the Board. His registration lapses in September 2015.
  • He is granted conditional registration in March 2021 and has complied with the conditions of his registration.
  • His registration was suspended in July 2023 after the coroner’s referral to the DPP…
  • He applies for a review of, and a stay of the immediate action. The stay is refused on 22 August 2023.

The latest decision was the review of the decision to suspend his registration in July 2023.  I think it is worth noting, as an aside, this is simply a review of the decision to suspend his registration pending a final decision by the Board whether to make formal allegations of professional misconduct.  It has taken over a year for that review and in that time, there has still not been formal proceedings on the substantive issue of whether or not Dr Spencer is guilty of any professional error.  That the Board cannot act in that time, and it takes over a year to get a review of a decision terminating a person’s ability to work, reflects the maxim ‘justice delayed is justice denied’.   I note however VCAT’s advice that given there is no longer a need to see if the DPP will take action, they ‘expect that the Board should be in a position to finalise its investigation sooner than might have been the case’ ([179]).

Following the decision not to proceed with criminal prosecutions. VCAT invited the Medical Board to reconsider its decision. The Board confirmed the decision to take immediate action and suspend Dr Spencer’s registration ([31]).  At [33]:

In its decision, the Board referred to the coroner’s finding as a whole, which went beyond the referral to the DPP, and to particular paragraphs of the coroner’s findings,[8] which it said illustrated the seriousness of Dr Spencer’s alleged conduct, its inconsistency with fitness for registration, and the capacity of the alleged conduct to significantly undermine public confidence if immediate action were not taken.  The Board said that this remained the case, despite the fact that there would now be no criminal charges against Dr Spencer.

The Board also relied on further expert evidence as to the benefit that Mrs Spencer might have had if an ambulance had been called and evidence of less than polite communication between Dr Spencer, the police, AHPRA and VCAT.

Given that decision by the Board, VCAT continued with its hearing to (at [40]) determine:

… whether there are sufficient grounds now for a reasonable belief that it is in the public interest that immediate action be taken, and be taken in the form of suspension.  Does public confidence still require it in circumstances where Dr Spencer will not be charged with a criminal offence?

Dr Spencer denies any wrongdoing. He says that he performed CPR for as long as he could and called for help.  Witnesses had reported hearing ‘screams’ from the premises which Dr Spencer said was his call for help. He did attempt ‘to perform a cricothyroidotomy using a kitchen knife and pen’ ([9]).  He says it was only when, exhausted, that he could no longer continue CPR that he stopped to look for his wife’s bag to find a phone and call 000 ([60]).

The issue for VCAT was whether it was in the public interest that Dr Spencer does not practice pending the interminable wait for the Medical Board to refer as yet unspecified allegations to a committee or VCAT.  VCAT said (at [132]-[133], and [136]):

We have carefully considered all that Dr Spencer has said about the morning his wife died, and his explanations for the long delay in calling an ambulance.

We do so to evaluate whether the public, reading those explanations after reading the coroner’s findings, would be sufficiently reassured that he had acted appropriately and consistently with the obligations of a medical practitioner (and a reasonable person) in the circumstances, as he contends…

Ultimately, Dr Spencer’s various explanations did not reassure us, and, we believe, would not reassure fair-minded members of the public about his actions and decisions, and the delay in calling an ambulance…

They continue (at [139] and [143]):

We consider that, apart from any alleged criminal responsibility referred to in the coroner’s findings, Dr Spencer’s actions (and inactions) on the morning his wife died raise serious concerns about his fitness for registration as a medical practitioner…

We think that members of the public reading the coroner’s findings, the uncontentious facts, and Dr Spencer’s explanations would remain concerned that it took him so long to call an ambulance, and by the circumstances of Ms Spencer’s death, and that there would be an impact on public confidence in the medical profession and its system of regulation if immediate action was not taken.

Why is immediate action required given that Dr Spencer was allowed to register as a medical practitioner in March 2021 and where he met the conditions imposed on his registration?  All that changed in that time was the coroner’s findings and the coroner’s view that an offence may have been committed.  VCAT said (at [150]-[151]):

We consider that the coronial findings contained new and significant information about the circumstances of Ms Spencer’s death, and Dr Spencer’s alleged conduct at the time of her death.  The coroner’s findings also include information relevant to the question of whether Dr Spencer had engaged in conduct inconsistent with being fit to hold registration.

They warranted fresh consideration of whether regulatory action was required, and in our view required consideration of urgent action.  The Board did not delay doing so, contrary to a submission of Dr Spencer.  The Board took immediate action just over one month from the publication of the coroner’s findings.

Discussion

It is not the place of this blog to discuss the details of the Health Practitioner Regulation National Law and immediate suspension. What is of both interest and concern for Australian Emergency Law and perhaps practitioners is the effect this case may have on resuscitation decisions. 

It has been said that no-one has been sued for doing first aid but here is a doctor, regardless of what one thinks of his drug usage and untested allegations of domestic violence, being suspended and held to account over his CPR performance.  He claims he provided effective CPR for as long as he could and that when he reported to Ambulance Victoria that he’d been doing CPR for ½ to 1 hours when it was closer to 3 hours was simply a mistake in trying circumstances.

The Board’s case turns on expert medical reports that calling 000 may have given Ms Spencer a better chance but of course no-one can say that the outcome would have been different if he had stopped to call. 

It’s a fine line.  He says he called for help, the call was heard, but not responded to. He says he made a judgement not to terminate CPR to spend time trying to locate a phone. Others say he should have.  Dr Spencer was not of course anyone but a specialist medical practitioner.    But it would be chilling if people, even if only doctors, are going to questioned in fine detail about how they approached and applied the DRSABCD action plan in particular when acting in extreme circumstances such as when resuscitating a family member away for their professional environment.

We will continue to watch to see what, if any allegations about his conduct on the night in January 2015 are finally put before VCAT and see then what the Tribunal has to say about the obligations on health professionals when it comes to CPR performance.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), 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.