The death of Ms Dhu in police custody

30 Apr 2021

Statement by the Australian Health Practitioner Regulation Agency and the Medical Board of Australia.

Please note: This statement contains reference to someone who has died.

Today, the State Administrative Tribunal of Western Australia (the tribunal) released the orders for the Medical Board of Australia v Dr Vafa Naderi. This matter relates to the death of Yamatji woman Ms Dhu in police custody in 2014. We extend our sincere condolences to Ms Dhu’s family and acknowledge the effect that her death has had on her community, the Aboriginal and Torres Strait Islander and broader community.

The Medical Board of Australia v Dr Vafa Naderi

The tribunal ordered that Dr Naderi has behaved in a way that constitutes professional misconduct. A summary of the tribunal decision, and a link to the full orders, are available below.

We referred Dr Naderi to the tribunal because we believed his conduct met the threshold of professional misconduct – the most serious finding available under the National Law¹. In assessing Dr Naderi’s conduct, we cannot be punitive, consideration must be given solely to his practice as a medical practitioner and whether he breached the code of conduct for medical practitioners, as it was defined in 2014. Everyone has the right to receive safe care. Tragically, Ms Dhu did not receive the standard of care she should have rightly expected from Dr Naderi. It fell substantially below acceptable standards.

In considering what regulatory action should be taken to address Dr Naderi’s misconduct, we considered our regulatory role – the responsibility to prevent potential future risk posed by Dr Naderi and to maintain the standards of the profession. We found that Dr Naderi had made genuine attempts to assess Ms Dhu’s medical condition but made serious errors in his assessment and investigation of her presentation and condition. We also considered the significant steps Dr Naderi had taken to avoid a situation arising in similar circumstances and the deep remorse he displayed for the catastrophic events that led to Ms Dhu’s death. On that basis, we decided not to pursue suspension or cancellation of Dr Naderi’s registration.

Dr Naderi accepted the Board’s view that his actions amounted to professional misconduct and that determination was confirmed by the tribunal today.

We will continue, unreservedly, to pursue matters such as these to tribunal to ensure that when someone sees a registered health practitioner, they can trust that they will receive safe, professional care, in all circumstances.

Indigenous Deaths in Custody

We recognise that this decision has been made 30 years after the Royal Commission into Aboriginal Deaths in Custody and recent reports of the tragic deaths in custody of six Aboriginal people since March 2021.

Ms Dhu’s death demonstrates the serious and tragic consequences of racism in our health and justice system, with the wider events that led to Ms Dhu’s death having rightly been considered elsewhere including in a coronial inquest.

Ahpra and the National Boards reaffirm our commitment to the advancement of cultural safety in healthcare, as embodied in the National Scheme's Aboriginal and Torres Strait Islander Health and Cultural Safety Strategy, which was ratified by all National Boards in 2020. Culturally safe healthcare is fundamental to ensuring patient safety for Aboriginal and Torres Strait Islander Peoples in Australia’s health system. We have been progressively working to embed cultural safety in our policies and regulatory framework with the primary objective of eliminating racism in healthcare (please see our Statement of Intent).

We also welcome the proposed introduction into the National Law of a new guiding principle and objective that recognises the importance of cultural safety for Aboriginal and Torres Strait Islander Peoples, and our role in the development of a culturally safe and respectful health workforce that is inclusive and responsive to Aboriginal and Torres Strait Islander Peoples and helps eliminate racism.

Summary of the tribunal’s decision

Following a coronial inquest into the death of Ms Dhu in police custody and an independent investigation by the Australia Health Practitioner Regulation Agency into the medical care she received, the Medical Board of Australia referred Dr Vafa Naderi to the tribunal for professional misconduct on 10 June 2019.

Agreed facts

On 2 August 2014, Ms Dhu who was being held in police custody was taken to an emergency department after complaining of pain in the right lower rib region. She had a temperature of 36.6 degrees and a pulse of 72 beats per minute. Ms Dhu was seen by a medical practitioner and discharged back to police custody with a recorded diagnosis of ‘behaviour issues’.

On 3 August 2014, Ms Dhu was returned to the emergency department complaining of rib pain and shortness of breath. At triage she was found to have a rapid pulse (tachycardic), was dehydrated and was ‘warm’ and ‘agitated’. She was allocated an Australian Triage Scale (ATS) triage score of ATS 4, which meant that she needed to be seen within 60 minutes. Ms Dhu was not seen by Dr Naderi until approximately two hours after triage, shortly before which she was examined by a nurse who recorded an elevated heart rate.

Dr Naderi performed an ultrasound which ruled out collapsed lung, bleeding in her chest and any abdominal pathology. In his notes, Dr Naderi stated that Ms Dhu was a ‘difficult patient to assess’ and recorded ‘withdrawal from drugs’ and ‘behavioural issues’. He prescribed benzodiazepine medication and analgesia. Shortly afterwards he signed a ‘Fitness to Hold Form’ declaring that Ms Dhu was fit to be held in police custody, and Ms Dhu was released into police custody.

On 4 August, Ms Dhu was taken back to the hospital. On arrival she was unconscious, pulseless and not breathing. Resuscitation was attempted but she died shortly afterwards. The cause of Ms Dhu’s death was established at a coronial inquest to have been staphylococcal septicaemia and pneumonia with osteomyelitis complicating a previous rib fracture.

The tribunal’s findings

Dr Naderi’s examination and investigation of Ms Dhu was inadequate and fell substantially below the standard of care expected of someone with his level of training and experience.

He failed to:

• read the triage nurse notations recording Ms Dhu’s heart rate and failed to appreciate the increase in Ms Dhu’s recorded heart rate from 2 to 3 August 2014
• take Ms Dhu’s temperature in the presence of significant changes in her vital signs
• order a chest x-ray, or
• maintain adequate clinical records.

He also could have examined Ms Dhu in the area beyond the lower front ribs when she drew to his attention that the area was bruised and swollen.

He discharged Ms Dhu into police custody and declared her fit to be held in police custody despite her tachycardia and without any signs she was improving. He did not record his diagnosis or conclusions as to the explanation for her pain, and did not advise her custodians as to the circumstances she should be returned to the emergency department.

Dr Naderi’s conduct breached Good medical practice: A code of conduct for doctors in Australia and met the threshold of professional misconduct – the most serious finding available under the National Law.

In determining what it considered to be an appropriate response in this matter, the Board considered the mitigation factors presented by Dr Naderi and its responsibility to prevent potential future risk posed by Dr Naderi and to maintain the standards of the profession. Mitigation factors included that Dr Naderi:

• has taken full responsibility for his actions and remains deeply affected by the events of 3 August 2014. ‘He is remorseful about the catastrophic outcome for Ms Dhu and has insight into his management.’
• had made genuine attempts to assess Ms Dhu’s medical condition but made errors in his assessment and investigation of her presentation and condition.
• had taken steps to avoid a situation arising in similar circumstances including:

• improvements in emergency department practice to ensure assessment and explanation of all abnormal observations occurs in patients presenting to the emergency department
• improvements in note taking practices, both in the level of detail and contemporaneous nature in which they are recorded, and
• making changes in his own practice, and making significant efforts to promote and advance sepsis care and education at the hospital among his colleagues and trainees.    

• He did not have any other disciplinary history, prior to or subsequent to the event, with much of his career involving emergency medical treatment of Aboriginal People.

The Board considered that given the genuine steps that Dr Naderi had taken to learn from these tragic events to improve both his own practice and the practice of his colleagues, a suspension was not required to prevent any potential future risk he may pose. However, due to the serious failure to meet accepted professional standards in his care for Ms Dhu, the Board considered that the most serious finding available under the National Law was warranted – namely a finding of professional misconduct and the maximum fine available ($30,000).

On 30 April 2021, the tribunal accepted the outcome agreed by the Board and Dr Naderi:

• a finding of professional misconduct
• a reprimand
• a fine of $30,000, and
• a condition to complete a reflective practice report.

Dr Naderi was also ordered to pay the costs of the Board.

Details of the reprimand and condition on his registration will be published on Dr Naderi’s entry in the public register of practitioners.

The full tribunal orders are available on tribunal's website with a link to the tribunal website to be published on Dr Naderi’s entry on the public register of practitioners.

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¹The Health Practitioner Regulation National Law, as in force in each state and territory (the National Law).