Australia: Obstetrician/gynaecologist drinks alcohol while on call

Last Updated: 20 June 2017
Article by Shannon Mony and Will Goodheart

Health Care Complaints Commission v Schmidt [2016] NSWCATOD 145

Key Points

  • A complaint was made against Dr Schmidt following his conduct prior to and during the course of Patient A's labour.
  • The complaint had two facets. The first facet was that Dr Schmidt had consumed alcohol whilst on call and attended on a pregnant patient in a hospital.
  • The second facet was that Dr Schmidt conducted himself in an inappropriate manner in his interactions with Patient A and her mother.
  • It was established that Dr Schmidt had consumed alcohol on that evening at a dinner party. The issue was the effect the alcohol had on his abilities to function.
  • The other issue was whether Dr Schmidt's demeanour and behaviour was as offensive as was being alleged and its reasonableness given the severity of the situation.
  • The appellant, the HCCC, brought an appeal to the Civil and Administrative Tribunal from a decision of the NSW Medical Council to dismiss the complaints.
  • The appeal was ultimately dismissed. However, the Tribunal went to lengths to ensure that this was not seen as condoning Dr Schmidt's actions. His conduct was considered to be below the standard expected of a medical practitioner and would therefore constitute unsatisfactory professional conduct pursuant to section 193B of the National Law. However, the complaint was not framed on this basis which allowed Dr Schmidt to escape an adverse finding.


Patient A was admitted to Lismore Base Hospital on 30 October 2013 at around 10:10 pm. At this stage, Patient A was several days beyond her due date and went into labour at approximately 5am the following morning. That evening, Dr Schmidt attended a dinner party while he was on call. Dr Schmidt conceded that he had consumed wine and champagne at the dinner party.

Patient A had a natural birthing plan from which she did not want to divert and refused to be treated by the doctor present at the hospital. Accordingly, Dr Schmidt was summoned to the hospital at 11 pm to attend to Patient A.

The attendees of the dinner party all agreed that Dr Schmidt had at least a glass of champagne and wine during the course of the evening. The degree of the witnesses' recollection of his demeanour varied, most however recall him falling asleep at the table, refilling his own glass and a conversation at the end of the night that he was not fit to drive.

Additionally, Patient A and her mother alleged that Dr Schmidt adopted a "belligerent"" demeanour when discussing the decisions for monitoring, labour and method of delivery of the child. Specifically, it was alleged that Dr Schmidt responded to patient A's unwavering desire to proceed with a natural birthing plan with profanity and aggression.

The Law

Complaint one: the intoxication issue

During the presentation of evidence from several witnesses, the Tribunal had to consider that the evidence itself was not conventionally traditional evidence, given the fact that it was primarily based upon common sense. Because one's notion of intoxication may differ from another's, and it cannot be known how much alcohol was consumed by Dr Schmidt, evidentiary issues arose. It was also discussed whether a doctor "on call" should be allowed any alcohol, as some are often on call for weeks at a time. It was deemed that although they were not in compliance with the rules of evidence, given the public interest nature of the claim and conversely, the fact that a practitioner's reputation was at stake, they had an "obligation to make findings of fact based upon material which is logically probative in which the rules of evidence provide a guide".

Conflicting eye-witness accounts of Dr Schmidt's state were submitted. The majority noted that there was no physical evidence that he was intoxicated. The experts examining his alcohol levels both attempted to ascertain a level of intoxication and "impairment" however, as it was so unclear as to how much was consumed and the fact that there are so many contributing factors, including tolerance, food intake and the body type of the person drinking, neither could properly succeed. It was very difficult to determine that Dr Schmidt had reached the state of drunkenness because there was no blood test nor was there proof of how much he had consumed. On this basis, the Tribunal dismissed the claim, as it was prejudicial to make an adverse finding in the absence of definitive evidence.

Complaint two: the belligerent demeanour

As mentioned above, Patient A alleged that Dr Schmidt conducted himself in an inappropriate manner in his interactions with her and her mother in that he was argumentative and failed to create an environment where Patient A and her mother could discuss their decisions for monitoring, labour and method of delivery. Dr Schmidt provided evidence to the effect that he reacted in this manner due to his concern for Patient A's child given Patient A's refusal to follow medical protocol.

The tense and somewhat aggressive nature of the conversation was not in contention. Ms Campbell (midwife present at the time) described Dr Schmidt as "firmly emphasising the risks but with an added level of belligerence". Patient A's mother also conceded that she was a "confrontational woman" when accused by Dr Schmidt.

The Tribunal appreciated the difficult and potentially dangerous situation in which Dr Schmidt found himself. Patient A, through her unwillingness to follow medical protocol and her strong intent to only follow

the "unorthodox" methods from her research had compromised the birth of the child. The severity of the situation was worsened by the "confrontational" nature of her mother. The Tribunal ruled that although it was not an ideal and professional manner in which to react, it was not so below the standard to qualify for "unsatisfactory professional conduct".

The complaint was dismissed by the Tribunal for reasons to do with the way in which the complaint (and the specifics of the complaint) were formulated. Additionally, the Tribunal was not convinced that the expert evidence adduced showed Dr Schmidt was as impaired as alleged. Although a finding was not made against Dr Schmidt, the Tribunal emphasised that it did not condone his conduct, particularly the consumption of alcohol while on call.

Lessons Learnt

The most important thing to take from this case is the fact that when a Tribunal is placed in a position whereby they must make a ruling based around two relative ideas of behaviour, sometimes they must divert from proper judicial protocol. In this sense, the Tribunal needed to take into account the circumstances surrounding the offending behaviour and in addition make "common sense" determinations. Conversely, the Tribunal needed to weigh up the probative value of such conclusions without being prejudicial to Dr Schmidt. The court needed to put aside the moral ramifications of the individual claims in determining their ruling.

The Tribunal found that the complaint in relation to the consumption of alcohol was not made out. However, the Tribunal went to lengths to ensure that this was not seen as condoning Dr Schmidt's actions. His conduct was considered to be below the standard expected of a medical practitioner and would therefore constitute unsatisfactory professional conduct pursuant to section 193B of the National Law. However, the complaint was not framed on this basis which allowed Dr Schmidt to escape an adverse finding.

In relation to the complaints about Dr Schmidt's "belligerent" behaviour, the Tribunal considered that Dr Schmidt's actions were improper but were not sufficient to attract the characterisation of unsatisfactory professional conduct.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Shannon Mony
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