The Criminality of Treatment Dr Patel and Beyond (Part 4)

View other articles in this series:
Dr Patel & Beyond Part 3
Dr Patel & Beyond Part 2
Dr Patel & Beyond Part 1

Introduction

However, in 2012 the High Court of Australia dismissed all charges against Dr Patel, relating to four patients because of a miscarriage of justice, but ordered a retrial. Following these events, the Queensland Director of Public Prosecutions (DPP) filed new charges against Dr Patel in relation to Mr Morris’ death.

Why is it Dr Patel was acquitted by another jury in 2013 of Mr Morris’ manslaughter? Is this is the end of the matter for Dr Patel?

The High Court

Dr Patel had been convicted of three counts of manslaughter and one count of unlawful grievous bodily harm in the course of surgery on four patients while at Bundaberg Base Hospital. Section 288 of the Queensland Criminal Code (the Code) enshrines a legislative obligation to preserve life, and until this case, it was thought that obligation only applied to the actual performance of the surgery – requiring that surgery be performed with a reasonable standard of care and skill. The High Court determined that the prosecution’s conduct, in changing their focus mid‑trial, had led to a miscarriage of justice. However, Dr Patel was unsuccessful in persuading the High Court that s288 of the Code¹ should be restricted in its application to the performance of surgery alone and not expanded to the decision to operate or to advise.

Mr Mervyn Morris

On 20 May 2003, Mr Morris (75 years old) was admitted to Bundaberg Hospital with rectal bleeding. On 23 May 2003, Dr Patel performed a sigmoid colectomy and colostomy. No bleeding point was found but the operation was straightforward and without complication. On 30 May 2003, Mr Morris suffered a wound dehiscence and a repair was performed.  Mr Morris died on 14 June 2003.

Claim by the prosecution

Noting the High Court’s interpretation of s288 of the Code, the prosecution abandoned allegations of surgical incompetence, focusing the case on fitness for surgery, incorrect diagnosis and post‑operative care.

Although the operation was performed “well enough”, the prosecution argued that Mr Morris responded poorly to the operation which lead to cardio-respiratory failure, hypoalbuminaemia and fluid overload, malnutrition, and septicaemia.

The jury finds Dr Patel not guilty

The jury trial commenced in early February 2013. The jury heard evidence from experts and colleagues.  A prosecution expert told the jury Dr Patel “conservatively” treated Mr Morris but that unexpected complications (not necessarily related to the operation) may have left Mr Morris permanently weakened. He was of the view that Mr Morris had an abdominal infection (one week after the procedure), which ultimately caused his death.

After five weeks of evidence and 48 hours of deliberations, on 13 March 2013, the jury found Dr Patel not guilty of the manslaughter of Mr Morris.

What now for Dr Patel?

As with all jury trials we will never know the reasons behind their finding. They appear to have accepted that Dr Patel’s management, while possibly deficient, was not grossly negligent or capable of a criminal finding. One could theorise that the trial was run in a different political environment – so the stigma around Dr Patel was diluted.

After this decision, Queensland prosecutors filed proceedings for a new trial against Dr Patel for causing grievous bodily harm to Mr Ian Vowles.

A new jury, armed with a new set of facts and hearing from different experts may arrive at a different outcome. The prosecution will undoubtedly learn from procedural problems faced at this trial. Whatever view one holds about Dr Patel, a finding of criminal conduct arising from surgical treatment must indeed have a high burden of proof. The acquittal by the jury perhaps recognises this high burden.

Kerrie Chambers is the Senior Partner in the Health Group at HWL Ebsworth Lawyers and Feneil Shah is an Associate.

1 Sections 291, 303 and 320 of the Code create the offences of unlawful manslaughter and grievous bodily harm.