by Joan Arakkal
The evening before the wedding, we gathered in Smita’s house for the mehendi night. The place was festive with lights and canopies and live classical music. Guests wandered in and out of the dining room, where the tables were loaded with sweetmeats and savouries. The bride-to-be sat on a low cushion in the entrance hall. The henna artist had not yet arrived, so we followed Smita to her bedroom where a glittering maroon red sari was laid out. She was always understated – a tiny gold stud was the only jewellery we had ever seen her wear – and we tried hard to imagine Smita bejewelled in the gold finery that sat on her bed.
Back in the hall, Smita stretched her hands out patiently as the artist squeezed dark green henna from a cone. We were mesmerised as tiny flowers and leaves coiled around tendrils in symmetrical asymmetry. As the designer’s artistry moved away from her hand onto her forearm, Smita looked up at me.
‘You are the future hand surgeon. What do you think of this artwork?’
‘It is as intricate, beautiful and clever as what is under your skin, Smita,’ I replied.
She laughed. ‘I remember your homunculus – the grotesque man straddling the brain. Your cortex man’s hand took up most of the brain space. I can see why you are fascinated with this part of the body.’ After a pause she continued. ‘The henna looks good on my hand, doesn’t it?’
‘Smita, your hands have always been beautiful – hennaed or otherwise.’
What I did not add was that I found all hands beautiful. Callused, coarse hands were the most beautiful to me. Stumpy or slender, gnarled or knotted, manicured or cracked, the marvel of their dexterity did indeed deserve to occupy a large representation on the brain chart.
The following day, we arrived at the mandapam at the crack of dawn, dressed in our Kancheepuram silks. Muhurtham, the auspicious hour, had been determined to be 6 am. The stage was decorated with garlands of jasmine, roses and marigold. Flames from the sacred fire danced in the metal vessel under the saffron canopy. The Brahmin priest with a sacred string running across his flabby chest chanted Sanskrit verses. Smita arrived, looking radiant. With her right hand she reached across to hold Prakash’s right hand. They circled the fire seven times, symbolising their journey through life. Prakash chanted mantras. ‘I am the words and you are the melody. I am the melody and you are the words.’
It was now time for the groom to tie the thaali, the sacred thread, around Smita’s slender neck. The musicians piped out music from the naathaswaram and the frenzied drum beats reached a crescendo. Emotion surged through the crowd as the primordial sounds struck deep chords – at once happy and sad. The string with a gold pendant now hung around our married friend’s neck. We smiled as we showered the couple with flowers and rice.
‘Your next patient is here, Dr Arakkal.’
‘Hello, doc.’
I looked up and was greeted by a large warm smile breaking through a dishevelled beard. It was now six weeks since Mr Tyson had fractured his wrist. The X-rays indicated the bone had mended. I pressed his wrist around the fracture site. His smile grew wider.
‘I’m healed.’
‘You are, Mr Tyson. You don’t need to wear that splint anymore.’
He gallantly offered the worn-out plastic to the nurse. ‘Here’s a memento, love,’ he said cheekily as she threw it into the bin and tried not to look disgusted. I looked at the rest of his hand and saw a faded surgical zigzag scar over his ring finger.
‘What’s that?’ I asked.
‘It’s an old injury from a knife attack. Cut the flexor tendon and a lady surgeon fixed it at the time. Good job too,’ he added as he bent and straightened his finger.
I went back through the records and found the operative notes, written thirteen years ago in my handwriting. He left the room grinning.
‘You’ve changed, doc.’
‘So have you,’ I said to his retreating back.
Much water had flown under the bridge since I had last worked here as a registrar.
I thought of Smita. She was thriving in her field and had made a name for herself in the US. Her excellence and hard work had been rewarded and her ‘American dream’ had been realised. The last time I spoke to her, she was setting out for a walk with Prakash. I pictured them strolling hand in hand through the old growth forest of Massachusetts, only this time there was no henna on her hands.
I wondered if there was an equivalent ‘Australian dream’ for people who brought their talents to this shore. The obstacles placed before them and the hoops they had to jump suggested otherwise.
As the weeks passed, it became clear that the administration that initially seemed keen to proceed with my appointment was now stalling. At the time, I was totally unaware of the powers gathering against me. The AOA was aware of my impending appointment at Fremantle Hospital. Emails to the director of medical services expressed the AOA chairman’s strong opposition to my employment. The emails halted my appointment, as did a letter from the AOA to the Australian Health Practitioner’s Regulation Agency (AHPRA) that questioned my specialist registration without an FRACS qualification, and raised the question of my competence.
AHPRA invited me to an interview, at which I produced the relevant documents. They were satisfied that things were in order and that there were no concerns regarding my ability to practise. I continued in the unpaid specialist position at the hand surgery unit and awaited my formal appointment. I was buoyed by the way my research was progressing and my impending appointment at Fremantle Hospital. Life could not have looked better. Our children were both off to university and Francis and I were looking forward to spending more time with each other. When people asked how we were coping with our empty nest, I replied, ‘Very well.’
But I had underestimated the long reach of the Perth bonemen. It appeared to me that they were determined to keep me out. It had long been speculated that they would pursue and hound people out of their turfs. A plausible explanation was that the spoils of hand surgery were shared between an oligopoly that maintained a closed shop. With AHPRA willing to act as handmaiden to the requested removal of my specialist registration, I realised I was up against a formidable enemy. They looked for anything that would help their cause. And they found something. Something wonderful. A pseudo-technicality. A Kafka-esque way to get me out.
A year later, after having renewed my specialist registration every year for fifteen years, AHPRA contacted me again. This time they asked me to withdraw my specialist registration. It appeared they had made a mistake when transferring my name from a register. This very strange request prompted me to approach the medical defence association.
My medical defence team believed that the matter would end with a simple letter to AHPRA explaining that no mistake had been made when they granted me registration fifteen years ago. I realised, however, that the real error lay in believing that AHPRA was attempting to get their records straight. Each time my lawyers provided an argument that countered theirs, AHPRA came up with another one. I began to feel that their underlying motive was to refuse to renew my specialist registration.
AHPRA even raised the bogey of patient safety, which justified any action they took. The overarching concern for public safety could not be overlooked. The sacrifice of an individual for the collective good was a powerful argument. Strongly worded letters from senior consultants and the head of surgery at Fremantle Hospital that attested to my safety and competency, and their eagerness to employ me in their department, along with the fact that I had a clean record with no errors or misdemeanours in my medical practice, prompted APHRA to quickly reply that they had no actual safety concerns. Further, the Royal Australasian College of Surgeons had repeatedly certified that I was demonstrating proper professional standards of knowledge and performance at a specialist level.
It was laughable that a regulatory body claimed they could repeat an error year after year for fifteen years, including through two major transitions – one at the time of introduction of the Medical Practitioners Act and the other when the stat
e medical boards had transitioned to a national regulatory body – each requiring scrutiny and auditing of their records. If indeed they had made an error, under the circumstances I believed it was the regulatory body that needed investigation, not me.
In all, AHPRA changed their mind eight times about why my specialist registration would not be renewed. My lawyers likened their approach to using a sledgehammer to swat a fly. And I was the fly.
At the request of my lawyer, I was given an opportunity to present my case to the board members of AHPRA. Three senior surgeons, including the head of the department and the director of the surgical division of Fremantle Hospital volunteered to come and support my submission. This was not allowed by the board and no explanation was given for their refusal.
I waited outside the boardroom with the senior physician from my medical defence team, who was the only person allowed to come along to support me. The professor was a previous officeholder in the Australian Medical Association and was familiar with the policies and workings of the Medical Board of Australia.
As we waited to enter the room, the chairman of the Medical Board wandered out. He exchanged pleasantries with the professor and briefly acknowledged me as he walked towards the lift. He mumbled something about fetching a colleague who had lost his way in the car park. The octogenarian disappeared into the lift to find and lead his colleague to the boardroom.
The rectangular room sat fifteen members along its walls. As if presiding over the meeting, I sat at one end of the room with my support person beside me. After thanking them for the opportunity to present my submission, I outlined the policies, regulations and sequence of events that had seen me registered as a specialist. When I finished, I was asked three questions. The first came from the chairman.
‘So how did you get your specialist registration?’
I summarised my presentation again. The second question came from a woman on the panel.
‘So, did you apply to the orthopaedic college?’
Somewhat baffled, I replied ‘No,’ adding that no such college existed.
The third and final question sought a minor clarification, and then I was asked to leave. The deliberations continued behind closed doors. My support person later indicated that many of the doctors on the panel argued in my favour, while the AHPRA lawyer and a few others were vehemently opposed.
A few months later, after I was informed that my specialist registration would not be renewed I contemplated my next move. A tribunal hearing. I picked up my sling and pebbles and decided to confront Goliath. Submissions and freedom of information requests now occupied my days. My brother stepped in to help. My surgical training had not prepared me for the interactions with the Medical Board of Australia and the legal jargon that accompanied it. I had entered a new world where skills of the hand were secondary to the skills of the mouth.
SPUDSHED
Once a week, I go to the Spudshed market to stock up on fruit and vegetables.
When I walk into the high-ceilinged shed, I’m greeted by the brightly coloured produce overflowing from wooden crates. Fruits and vegetables in different sizes and shapes sit in haphazard mounds. It’s a sharp contrast from the neatly stacked, airbrushed produce primly arranged in the plastic holders of supermarket chain stores.
Twenty-four hours a day, seven days a week, people flow into the market and leave with their trolleys piled high with nature’s bounty. Headscarves, Punjabi salwars, Maori tattoos and African braids navigate the crates and shelves, making casual pleasantries, sometimes tasting a half-peeled tangerine, sometimes exclaiming at the unbelievably low prices. Italian and Mandarin mingles with Arabic and Tamil as people chatter away unselfconsciously in the earthy air of the shed. I load my trolley with broccoli, bananas, spinach and string beans. Roma tomatoes, bitter melon and okra are added to the pile of onions and juicing carrots. A tray of mangoes, a potted herb, a bunch of oriental lilies and my trolley is overflowing.
I wait behind another trolley at the checkout. On the wall is a picture of Francesco Galati, the inspiration behind Spudshed. Francesco was a Sicilian migrant. When he arrived in Australia, he was given a licence to grow potatoes on a small farm on the outskirts of Perth and he took a second job as a painter to supplement his income. Little did Francesco know that he had come to the attention of a group not unlike the mafia he had left behind in his motherland.
Western Australia’s Potato Marketing Corporation had been watching him closely. They swept down on him and took away his licence to grow potatoes because he had flouted a rule when he undertook the painting job. Francesco’s ten-year-old son, Tony, watched his family’s livelihood being crushed under the might of the Potato Marketing Corporation.
When Tony and his brothers took over the business, they decided to do something about the price-fixing and anti-competitive behaviour that meant people paid a higher price for potatoes than they should. The Galati brothers grew more potatoes than they were allowed to, and when the law came down on them they gave away potatoes for free. Legal battles raged between the suited businessmen and a swarthy, bushy-eyebrowed man in shorts and a singlet. Tony lost the battle but won the war when the government disbanded the Potato Marketing Corporation. The people of Perth remain largely unaware of the efforts that it took to get the humble spud to the table when they sit down to a meal of chicken and roast potatoes.
To me it appeared that the way Orthopedics functioned in Western Australia had many similarities to the Potato Marketing Corporation. Protectionism and anti-competitive behaviours were achieved with carefully constructed policies that appeared, on the surface, to be fair and efficient.
The strategically controlled numbers of orthopaedic surgeons specialised in specific areas of the body: shoulders, hips, knees, spine, hands and so on. Once the work was distributed this way, small oligopolies appear to emerge. Surgeons looked after themselves and, by tacit agreement, each other. Patients circulated between these groups, often unaware they were caught up in an incestuous money-making web. In a parochial town like Perth, it was common to look after one’s mates at all costs, even if you were members of a regulatory body. Anyone perceived to be a troublemaker could be shut out with little effort.
A mediation was arranged before the matter of my specialist registration went for a tribunal hearing. I attended the meeting with a junior lawyer from my defence team, not expecting APHRA to pull out their heavyweights. They came armed with two lawyers as well as the most senior member of the Western Australian medical board. One of their lawyers, a QC and a criminal barrister, confidently told me that my registration had contravened the policies of the time and that I should not have been offered a tribunal hearing. I requested that the policy he referred to, be made available so that the claim could be corroborated with evidence. He agreed to show me the policies at the next mediation, to be held four weeks later.
AHPRA then delayed the second mediation by a month. When we finally met, no policies were produced. My question about the whereabouts of the policy, so central to their argument, was met with silence. Indeed, all they offered was the view that I should be grateful for having reaped the benefits of the so-called mistake that had allowed me to be registered as a specialist for fifteen years.
Many months later I walked into the District Court building with my lawyer and barrister. We looked at the tribunal listings for the day: Arakkal v. The Medical Board of Western Australia. I had seen my name on boards of merit lists and theatre operating lists before, but seeing it emblazoned on a court list was bizarre.
The hearing lasted two days. Supporting me was the current chairman of the division of surgery and the head of department of plastic surgery in whose hand unit I had most recently worked. Though letters from AHPRA had initially suggested that the withdrawal of registration was due in part to their concerns about public safety, it soon became clear that this argument would not hold water. They relied instead on the existence of the phantom policy.
The only evidence that was produced in
support of this policy, which was central to APHRA’s argument, was a witness statement by a very senior officer in the Western Australian health system. When he was questioned, it appeared that he had little knowledge of what was written in his own statement. The decision to not renew my specialist registration was upheld. However, my lawyer successfully appealed this verdict on the grounds of the judge’s over-reliance on that witness’s evidence.
My medical defence team continued to support me. Nearly four years after I had received AHPRA’s letter asking me to withdraw the specialist registration, I now sat in the Supreme Court behind my lawyer and his assistant. AHPRA’s two barristers – one of whom was a QC flown in from Melbourne – sat on the other side of the room. Behind them sat their assistants. Australian taxpayers’ money had been generously used to recruit people to plead AHPRA’s case. My lawyer raised the issue of other doctors in a similar situation whose specialist registration was still in place. The QC brought up the statutory interpretation of the law and argued that AHPRA could use its discretion in applying the law. The judges listened attentively. As discussions continued about balance of probability, common law and administrative law, I watched in disbelief as my vocation was reduced to a legislative jargon.
The medical insurance company had set aside $500,000 for my defence. An even greater amount would have been spent by AHPRA. More than $1,000,000 was being spent just to keep me out of a public hospital appointment. Nothing made sense except the resolve of the AOA – one million dollars was a small price to pay.
Doctors’ incomes in the private system were initially designed to be generated in two parts. The generous Medicare remuneration from government is topped up by health insurance companies that allow patients to choose their surgeons and hospitals. However, more and more surgeons beef up their fees by charging patients a ‘gap payment’, over and above the money they receive from government and insurers. The average patient, who has already paid their Medicare levy and taken out health insurance, has to dig even deeper to pay the gap. There is no regulation on the amount of gap payment that doctors can charge patients.