The Criminality of Treatment: Dr Patel & Beyond(Part 3) | Defence Update

View other articles in this series:
Dr Patel & Beyond Part 4
Dr Patel & Beyond Part 2
Dr Patel & Beyond Part 1

Dr Jayant Patel has finally had his case determined by the High Court. In a unanimous decision the High Court of Australia¹ upheld Dr Patel's appeal for convictions of manslaughter and unlawfully doing grievous bodily harm under the Queensland Criminal Code² (the Code). A new trial was ordered, so the matter will return to the Queensland Courts for re-hearing. Dr Patel has been granted bail ahead of the re-hearing. What does the decision mean for Dr Patel, and what does it mean for the remainder of the profession?

Dr Patel had been convicted of three counts of manslaughter and one count of unlawfully doing grievous bodily harm in the course of surgery on four patients while at Bundaberg Base Hospital. Until day 43 of the trial the prosecution had focused its case on seeking to establish Dr Patel had been grossly negligent and incompetent in the performance of the surgery. As the case progressed it was clear the evidence would not support findings that the surgery was performed incompetently. On day 43 the prosecution re-cast its case and sought to establish a criminal act arising from the decision to perform each of the surgical procedures. The High Court determined that the prosecutions' conduct, in changing their focus mid trial had led to a miscarriage of justice.

While Dr Patel has been given a “reprieve” and is permitted a retrial he does so knowing the High Court has dealt him somewhat of a legal blow. Dr Patel was unsuccessful in persuading the Court that s.288 should be restricted in its application to the performance of surgery alone and not expanded to the decision to operate or to advise. S.288 of the Queensland Code enshrines a legislative obligation to preserve life, and, until this case, it was thought only applied to the actual performance of the surgery – requiring that surgery be performed with a reasonable standard of care and skill.

In a joint judgment the High Court said that s.288 extended to a duty in respect of a decision as to whether the contemplated surgery be undertaken. The court said that the phrase “surgical treatment” as used in s.288 encompasses all that is provided in the course of such treatment from giving of an opinion relating to surgery to the aftermath of surgery. This is supported by the duty in s.288 in respect of surgical and medical treatment which refers to a person who undertakes to administer, not just administer, the treatment.

The Court did however say that s.288 could not apply to establish criminal responsibility for death/manslaughter or grievous bodily harm without the physical act of surgery. So there can be no finding of criminal responsibility in medical management without the physical act of surgery. The High Court judgment does make it very clear that a medical practitioner can be prosecuted for gross negligence for recommending surgery that, even though performed competently, should not have been performed.

The High Court judgment is significant for Dr Patel in the ongoing conduct of his re-hearing. The court's interpretation of s.288 would seem to create a significant obstacle in circumstances where the medical evidence did tend to point to concerns around Dr Patel's decision to recommend the surgery.

While Dr Patel was successful in overturning the Court of Appeal's judgment he has achieved little more than a temporary reprieve. On re-hearing, the High Court has removed the ambiguity in s.288 that his legal team seized on in the lower courts. Dr Patel's team has a challenge before them.

Should fellow practitioners be concerned about the High Court's findings? As the Court was interpreting a section of the Queensland Code, a section that is perhaps unique to that Code, it is arguable the judgment only applies to conduct in that state. Moreover the Patel "circumstances" that brought him to Court were perhaps created by a perfect storm – medically, bureaucratically and politically. Finally it should be noted that any assessment of potential criminal conduct must be to the very high criminal standard, beyond reasonable doubt. It really does require grossly incompetent decision making. When considered in context the risk to fellow practitioners, of a criminal investigation, is perhaps not as significant as the media hype had led us to believe.

Are you concerned about the High Court’s findings? Share your comments with us below.

Kerrie Chambers is the senior partner in the Health Group at HWL Ebsworth Lawyers and Feneil Shah is an associate.

¹ [2012] HCA 29 (24 August 2012); French CJ, Hayne, Kiefel and Bell JJ (joint judgment) and Heydon J

² Sections 291, 303 and 320 of the Code create the offences of unlawful manslaughter and grievous bodily harm Kerrie Chambers is the senior partner in the Health Group at HWL Ebsworth Lawyers and Feneil Shah is an Associate.