The Criminality of Treatment Dr Patel and Beyond (Part 2)

View other articles in this series:
Dr Patel & Beyond Part 4
Dr Patel & Beyond Part 3
Dr Patel & Beyond Part 1

Dr Patel unsuccessfully appealed the decision of the Supreme Court. Unless a High Court special leave application is successful he will serve out his seven year sentence.

The grounds of his appeal largely turned on the correct interpretation of s288 Queensland Criminal Code and perceived lack of procedural fairness. Section 288 of the Code provides:

It is the duty of every person who, except in a case of necessity, undertakes to administer surgical or medical treatment to any other person, or to do any other lawful act which is or may be dangerous to human life or health, to have reasonable skill and to use reasonable care in doing such act, and the person is held to have caused any consequences which result to the life or health of any person by reason of any omission to observe or perform that duty.

At trial the jury accepted that Dr Patel competently performed surgery but his decision to do so gave rise
to the error. So in one case the health of the patient was found to be too precarious, in another the patient did not have colon cancer, and in another the patient’s sigmoid colon was removed unnecessarily as the cancer was in the rectum. It was argued and accepted that the breach of duty imposed upon Dr Patel by s288 of the Code arose when he proceeded to operate upon the patient/s.

On appeal Dr Patel argued that he was entitled to be acquitted because the prosecution cases were not within the meaning of s288. He contended that upon the proper construction of s288 it applies only in relation to the absence of skill or the failure to use reasonable care in the course of surgery and it does not apply in relation to a surgeon’s decision to operate or to commend surgery to a patient. The Court of Appeal found no ambiguity in the interpretation of the section and said it applied both in relation to criminally negligent acts or omissions in the course of performing surgery and criminally negligent acts or omissions in performing surgery at all. The trial judge’s construction of s288 was affirmed.

In respect of the finding that Dr Patel breached his s288 duty the Court of Appeal did not disturb the following findings:

1. The way in which many of the procedures were actually carried out was relevant to the argument that Dr Patel lacked reasonable skills and ought to have known that.
2. In none of the procedures did Dr Patel, as he should have done, seek a second opinion.
3. Dr Patel did not, as he should have done, disclose or address his imposed and inherent restrictions.
4. In none of the procedures did he reflect on whether the procedures were necessary or whether alternatives were available.
5. In respect of patient Mervyn Morris, Dr Patel lacked reasonable skills and knew or ought to have known of his limitations regarding the surgery proposed. He should have known that the bleeding point was not identified and other non-invasive treatments were available.
6. In respect of patient James Phillips the jury established that Dr Patel’s oesophagectomy caused Mr Phillips’ death and that his decision to perform it was criminally negligent. He should have known that the patient was frail and had too many complications for an oesophagectomy to be performed on him.
7. In respect of patient Gerardus Kemps, Dr Patel’s decision to perform an oesophagectomy was criminally negligent. Mr Kemp’s health was too precarious for an oesophagectomy and the oesophageal cancer was far too advanced, making other palliative treatment preferable.
8. In respect of patient Ian Vowles, Dr Patel wrongly assessed that Mr Vowles was most likely suffering from familial colon cancer. The surgery was completely unnecessary and further investigations should have been performed, and other less dangerous procedures were available. This was the only patient for which there was no allegation regarding the procedure itself as being criminally negligent, just the decision to proceed and the knowledge of his skills being inadequate.

One cannot help but wonder whether Dr Patel’s errors — as heinous as they were — were assessed, analysed and dealt with in the undercurrent of a politically charged Queensland Health Department.

It is also true that as the Queensland Code enshrines a duty to preserve human life — …which is or may be dangerous to human life or health… and the person is held to have caused any consequences which result to the life… — the threshold to establish a finding of medical manslaughter in Queensland, is arguably lower than in other states and territories.

Was the seven year jail sentence “too tough”? The Court of Appeal also dismissed the Attorney-General’s appeal calling for a tougher sentence. We have so little guidance or precedents upon which to assess the penalty for a finding of medical manslaughter.

By way of comparison, and perhaps of some interest, in a recent NSW case, a 60 year old doctor who indecently assaulted two patients, removed a woman’s genitals without her consent and committed fraud has been sentenced to imprisonment for a minimum of two years and a maximum of three and a half years.

The lawyers for Dr Patel have lodged a special leave application in the High Court which may not be heard before the end of the year.

Feneil Shah, Associate Kerrie Chambers, Partner HWL Ebsworth Lawyers

1. MDA National. Defence Update Spring; 2010. p6.