Like what you've read?

On Line Opinion is the only Australian site where you get all sides of the story. We don't
charge, but we need your support. Here�s how you can help.

  • Advertise

    We have a monthly audience of 70,000 and advertising packages from $200 a month.

  • Volunteer

    We always need commissioning editors and sub-editors.

  • Contribute

    Got something to say? Submit an essay.


 The National Forum   Donate   Your Account   On Line Opinion   Forum   Blogs   Polling   About   
On Line Opinion logo ON LINE OPINION - Australia's e-journal of social and political debate

Subscribe!
Subscribe





On Line Opinion is a not-for-profit publication and relies on the generosity of its sponsors, editors and contributors. If you would like to help, contact us.
___________

Syndicate
RSS/XML


RSS 2.0

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

By Andrew McGee - posted Thursday, 14 June 2012


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?

Advertisement

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.

Advertisement

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.

  1. Pages:
  2. 1
  3. Page 2
  4. All

This article was first published on The Conversation.



Discuss in our Forums

See what other readers are saying about this article!

Click here to read & post comments.

1 post so far.

Share this:
reddit this reddit thisbookmark with del.icio.us Del.icio.usdigg thisseed newsvineSeed NewsvineStumbleUpon StumbleUponsubmit to propellerkwoff it

About the Author

Andrew McGee obtained his PhD in philosophy from the University of Essex in 2001 and is an associate professor in the Law Faculty at QUT. He has published on a number of philosophy and legal issues in leading international philosophy and law journals.

Other articles by this Author

All articles by Andrew McGee

Creative Commons LicenseThis work is licensed under a Creative Commons License.

Photo of Andrew McGee
Article Tools
Comment 1 comment
Print Printable version
Subscribe Subscribe
Email Email a friend
Advertisement

About Us Search Discuss Feedback Legals Privacy