R v Patel - [2010] QSC 199

SUPREME COURT OF QUEENSLAND

CITATION:

R v Patel [2010] QSC 199

PARTIES:

R

v

JAYANT MUKUNDRAY PATEL

FILE NO/S:

Indictment No. 387 of 2009

DIVISION:

Trial Division

PROCEEDING:

Criminal Trial – Ruling No. 4

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

4 June 2010

DELIVERED AT:

Brisbane

HEARING DATE:

2 June 2010

JUDGE:

Byrne SJA

RULING:

Section 288 of the Criminal Code Act 1899, in its terms, extends to a negligent decision by a surgeon to undertake surgical treatment.

CATCHWORDS:

CRIMINAL LAW – MANSLAUGHTER – CRIMINAL NEGLIGENCE – Interpretation of Criminal Code Act 1899 (Qld), s 288 – Meaning of “surgical…treatment” – Where surgeon charged with manslaughter and grievous bodily harm arising out of criminal negligence – Where evidence suggested surgery should not have been undertaken but when it was undertaken, was performed competently – Whether in administering “surgical…treatment” the “duty…to have reasonable skill and to use reasonable care in doing such act” extends to decisions to operate – s 288 encompasses the decision to commend surgical treatment to a consenting patient

Criminal Code Act 1899 (Qld), ss 282, 288

Attorney-General’s Reference (No. 6 of 1980) [1981] 1 QB 715, considered
Chew v R (1992) 173 CLR 626, cited
Deming No 456 Pty Ltd v Brisbane Unit Development Corporation Pty Ltd (1983) 155 CLR 129, cited
Department of Health & Community Services v JWB & SMB (“Marion’s Case”) (1992) 175 CLR 218, considered
Kelsey v Hill [1995] 1 Qd R 182, cited
R v Barlow (1997) 188 CLR 1, cited
R v Brown [1994] 1 AC 212, cited
R v LK; R v RK (2010) 266 ALR 399, cited
Royston Cook (1979) 2 A Crim R 151, followed

COUNSEL:

R G Martin SC and D Meredith for the Director of Public Prosecutions
M J Byrne QC and M Woodford for the Defendant

SOLICITORS:

Director of Public Prosecutions
Raniga Lawyers for the Defendant

HIS HONOUR: The latest question of statutory interpretation concerns the application of s 288 of the Code to circumstances where a surgeon performs, with reasonable skill and care, a procedure that should not have been undertaken.

s 288 stipulates:

“It is the duty of every person who … undertakes to administer surgical … treatment … 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, and the person is held to have caused any consequences which result to the life or health of any person by reason of any omission to observe or perform that duty.”

The patients consented to the procedures. Three – Mr Morris, Mr Phillips and Mr Kemps – died. Mr Morris and Mr Phillips died from post-operative complications. The bleeding that led to the death of Mr Kemps started during his oesophagectomy.

The prosecution contends that the operations were, in a word, unnecessary.

Removal of Mr Morris’s sigmoid colon is said to have been…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Patel

Details

AGLC: R v Patel [2010] QSC 199
Case: [2010] QSC 199
Decision Date: 4 June 2010

CaseChat Overview and Summary

The appellant, Dr Patel, was convicted of manslaughter and grievous bodily harm with intent under section 288 of the Criminal Code Act 1899 (Qld). The crimes arose out of the death of a patient following surgery which the appellant had performed. The patient had consented to the surgery, but the Crown contended that the surgery should not have been performed in the first place, and that this decision fell within the scope of the appellant’s duty to exercise reasonable care and skill in performing surgical treatment. The appellant appealed against his conviction, arguing that the decision to operate was not within the scope of the duty of care owed by the surgeon.

The Court was required to determine whether the duty of care owed by a surgeon in administering surgical treatment encompasses the decision to operate on a consenting patient. The Court considered the wording of section 288, which imposes a duty to have reasonable skill and to use reasonable care in performing surgical treatment, and whether this includes the decision to operate. The Court found that the decision to operate was within the scope of the duty of care owed by the surgeon, and therefore the appellant’s conviction was upheld.

The Court found that the wording of section 288 was broad enough to encompass the decision to operate on a consenting patient, as well as the performance of the surgery itself. The Court noted that the duty of care owed by a surgeon is not limited to the performance of the surgery, but also includes the decision to operate in the first place. The Court held that the appellant had breached this duty of care by performing surgery which should not have been undertaken, and that this breach resulted in the death of the patient. The Court found that the appellant was therefore guilty of manslaughter and grievous bodily harm with intent.

The appeal was dismissed, and the appellant’s conviction was upheld. The Court made no orders as to costs.

Orders