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.