The Patel case: what are the chances of a successful appeal?

The High Court has just finished hearing an appeal by Jayant Patel, the Bundaberg surgeon who was convicted in June 2010 on three counts of manslaughter and one count of grievous bodily harm. This follows the Court of Appeal's decision last year to dismiss Patel's appeal against his verdict and sentence.

The High Court's ruling is expected sometime over the next few weeks and could have significant implications for the decision making of Queensland's surgeons and other medical practitioners. If the High Court dismisses the appeal, it would broaden the options open to prosecutors when taking action against medical practitioners for negligent decisions causing harm.

Most discussion of Patel's case has focused on the possible miscarriage of justice of allowing the prosecution to change its case midway through the trial. This, of course, is one ground for the appeal to the High Court.

However another, separate, ground is that the section of the Criminal Code under which Patel was convicted did not apply to Patel's conduct.

The wrong part of the law?

It's difficult to predict what the High Court will decide. But last year the Court of Appeal found that section 282 of the Criminal Code could apply to cases where patients consent to surgery, as in Patel's case, contrary to the trial judge's finding.

This means that the case against Patel could have been brought under the ordinary manslaughter provisions without relying on section 288 at all (this would've been preferable to avoid all sorts of problems around interpretation).

Patel's team would then have raised section 282 as a defence, which provides that:

A person is not criminally responsible for performing or providing, in good faith and with reasonable care and skill, a surgical operation upon any person… if performing the operation or providing the medical treatment is reasonable...

It's possible Patel's team would've been unable to prove this defence, and that Patel would have been convicted in any event. If the High Court agrees with the Court of Appeal on the applicability of section 282, and if the High Court finds in favour of Patel on the other issues, a retrial would probably be ordered. And it's possible Patel would still be convicted.

Patel's original conviction

The relevant part of the Criminal Code under which Patel was convicted provides that:

It is the duty of any person who 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...

Taken at face value, this section seems to require anyone conducting surgery or medical treatment to carry out that surgery competently. The section appears only to impose a requirement to have reasonable skill and use reasonable care "in doing such act" – carrying out the surgery. It doesn't seem to apply to a decision to undertake surgery in the first place.

Yet the prosecution admitted that the actual surgery carried out by Patel was performed competently. What was incompetent was his decision to perform the surgery in the first place, for in two cases the operations were unnecessary and in two other cases the operations were too much for the patient to bear.

How, then, could Patel be prosecuted under this section? Even the trial judge said that Patel's conduct was "something that s 288 does not touch". However, he changed his mind about this when he came to review the section more carefully and applied what lawyers call "the rules of statutory interpretation".

So was he justified in changing his mind?

Acting, or deciding to act

The difficulty is that the words "in doing such act" presuppose the decision to do the act has already been taken, and that reasonable care and skill is required only in doing the act that implements it (the surgery itself). If those words were to apply to the reasonableness of the decision to do the surgery at all, then in cases like Patel's they'd require the surgeon not to carry out any surgery, because that is the only way of exercising the required care and skill (it was not reasonable to decide to do the surgery and so it shouldn't have been done). But it would be odd if "in doing such act" required an abstention from acting.

Both the trial judge and the Court of Appeal found a previous case – Royston Cook, 1979 – that suggested a way round this problem. Although based on a different provision, that case found that a decision not to administer anticoagulants (drugs to reduce the risk of blood clot) to a patient after surgery could constitute "surgical treatment".

Relying on this case, Patel's trial judge concluded that "surgical… treatment" is not limited to actual surgery, but extends to include steps taken which lead up to the surgery, and steps post surgery. The word "act" in the phrase "in doing such act" therefore did not refer merely to carrying out actual surgery, but to the whole regime of treatment given by a doctor in preparation for and post surgery, including the diagnosis and commendation of the surgery. The relevant act in Patel's case was the act of commending surgery.

That meant Patel could be convicted for inappropriately commending the surgery and for not becoming aware, either prior to or during surgery, that the operations weren't appropriate. In commending the surgery and then carrying it out, he'd failed to exercise the relevant standard of care.

The Court of Appeal upheld this aspect of the decision.

Will Patel's appeal succeed?

There are two main difficulties that the High Court will have to grapple with. First, the interpretation of the trial judge and Court of Appeal seems artificial. It is hard to see that the phrase "in doing such act" could really be meant to include the act of commending surgery, rather than being intended to refer to the "dangerous act" of conducting the surgery itself.

This is significant because there is a rule of interpretation (applied as a last resort) that says that if the words don't "plainly and unmistakably" cover the accused's conduct, the accused must be acquitted. The Court of Appeal said the interpretation was at least "reasonably open". But that is not enough for the conduct to be "plainly and unmistakably" covered, and so the High Court may have to overrule the Court of Appeal here.

The second difficulty is the reliance on the Royston Cook finding. That case understandably found that an omission to provide anti-blood clotting agents after surgery can be seen to be part of surgical treatment because it's one of the decisions the doctor had to make, given that surgery was carried out.

The decision to commend surgery in the first place, however, is different. It logically comes before any act or omission in the course of implementing that decision (such as deciding not to administer anticoagulants). So it's quite a different matter to use the Royston Cook case to include the threshold decision itself. That significantly extends the reach of the precedent set by Royston Cook.

Whether these difficulties are decisive remains to be seen. If they are, it's not for me to say what the prospects of success in a new trial are: that is for the jury and only the jury to decide. But even if the High Court accepts there are some legal difficulties with the current precedent set by the trial judge and the Court of Appeal, a retrial would mean that Patel would not be off the hook.

If the appeal is granted though, one can only sympathise with the families of the victims, who may have to wait longer for closure.