Will the High Court decision in the Patel case make a new prosecution any easier?

We have heard much about the reasons for the High Court’s decision to quash the conviction of Bundaberg surgeon Jayant Patel for the manslaughter of 3 patients and the grievous bodily harm of a fourth. But besides the failure of the Crown to sufficiently specify the particulars of the charges that would be brought against Patel, and the consequent leading of irrelevant and prejudicial evidence, does the judgement mark a legal development that will make this and future prosecutions easier?

There are two significant issues worth noting. Both concern the High Court’s ruling that section 288 in Chapter 27 of the Criminal Code (the Code) definitely applies to the decision to commend surgery in the first place, and not merely to the way in which that surgery is actually carried out. The first issue concerns how widely the provision extends. The second concerns the impact of the decision on the availability of defences under the Code.

Let us briefly recall the relevant wording of section 288:

It is the duty of person who undertakes to administer surgical or medical treatment...or do any other lawful act which is or may be dangerous to human life or health to have reasonable skill and use reasonable care in doing such act...

It was, of course, the prosecution’s concern that the provision did not apply to decisions to commend surgery (but only to the way it is carried out) that resulted in its original application to bring the case under a different part of the Code, instead. But both the joint judgment and Heydon J found that this provision applies to a decision to commend surgery in the first place, and not, as might initially be supposed, merely to its performance.

Perhaps surprisingly, Heydon J rejected the claim that this provision was ambiguous. That means that, for Heydon J, it was clearly directed not only to the carrying out of the surgery, but also to the decision to commend it at all. Heydon J’s reasoning depends partly on the examination of previous versions of the Code. A charitable reading of Heydon J’s claim that the provision was not ambiguous is that he considered that no residual ambiguity remained after the rules of interpretation – which allow recourse to earlier versions of the Code to shed light on the current version – had been applied. The cases which Heydon J discusses certainly seem to confirm that the intention behind the early versions of this provision of the Code (on which the current version is founded) was that the provision should apply to negligent decisions to carry out surgery, and not just to the way it is carried out. Thus, in the case of Chamberlain the accused recommended that the deceased rub a substance containing arsenic onto the tumour on her shoulder. This was negligent advice.

But it remains arguable that these cases do not decisively settle the matter, and that residual ambiguity remained. The difficulty is this. As Heydon J himself points out, if recommending surgery is an act for the purpose of the provision, then so too is the recommendation not to undergo surgery. But it is difficult to see how such an ‘act’ can be one that is dangerous to human life or health. It is surely stretching the language of the provision too far to say that the parliamentary intention was to refer, by the use of the terms ‘dangerous act’ and ‘in doing such act’, to the recommendation that surgery should not be undertaken. Yet once it is held that the word ‘act’ is broad enough to include advice, it is difficult to see how its reach can be restricted only to advice that surgery should proceed, rather than extending also to advice that it should not proceed. It is unlikely, however, that a person would ever be prosecuted for negligently advising surgery not to proceed, which negligence causes a patient’s death – other provisions in the Code would more readily apply in these circumstances, the conduct in question in such a case being an omission to provide needed surgery, rather than an act whose negligent implementation leads to death.

These problems are reasons for believing that the provision was arguably meant to be more restricted in its application than the High Court has allowed – at the very least, they seem to frustrate the conclusion that the provision is not ambiguous. Be that as it may, the High Court’s decision now leaves no doubt about the reach of the provision, and so the next issue concerns the development in the law to which the High Court ruling has led.

The significance of the decision that s 288 applies is that there are fewer hurdles for the prosecution to jump through when prosecuting under that section. If the prosecution had to rely, instead, on negativing Patel’s defence under chapter 26, section 282, it would also have to have negatived the defence of accident under section 23(1)(b) of the Code. This would have required showing that the deaths of the patients were at least a reasonably foreseeable consequence of the decision to operate. The Crown does not have to jump over this hurdle if it relies on section 288, and so this might make it easier to prove manslaughter in this and in other, future, cases.