R v Patel – the criminality of the decision to operate

R v Patel; ex parte A-G (Qld) [2011] QCA 81

Issue: one central issue on appeal was the construction of s.288 of the Criminal Code 1899, and in particular; whether it applied to omissions in the context of a decision to operate and in other instances provision (or lack)  of medical treatment. The Court of Appeal held it did, so as to make criminal, surgery (and in other instances provision of medical treatment or failure to provide) which might otherwise have been performed or provided with the requisite degree of skill and reasonable care.

[1] THE COURT: On 29 June 2010, after a 58 day trial in the Supreme Court at Brisbane, a jury found the appellant Jayant Patel guilty of the manslaughter of Mervyn Morris, James Phillips and Gerardus Kemps and of unlawfully doing grievous bodily harm to Ian Vowles. The charges arose out of surgical operations which the appellant conducted upon those men whilst the appellant was employed as a surgeon at the Bundaberg Hospital between May 2003 and December 2004. On 1 July 2010, the trial judge sentenced the appellant to concurrent terms of seven years imprisonment for each of the manslaughter offences and three years imprisonment for the grievous bodily harm offence.

[2] The appellant has appealed against his convictions and he has applied for leave to appeal against sentence. The Attorney-General has also appealed against the sentence. Another issue was initially raised as a question of law reserved by the trial judge and referred to this Court by way of a case stated pursuant to s 668B of the Criminal Code 1899 (Qld) (“the Code”). The appellant filed an application seeking that the case stated be heard and determined prior to the hearing of his appeal against conviction and application for leave to appeal against sentence, but at the hearing of the appeal the appellant abandoned the case stated.

THE APPEAL AGAINST CONVICTIONS

[3] It will be necessary in due course to refer to the manner in which the prosecution cases were narrowed during the course of the trial, but at this stage it is sufficient to identify the broad nature of the cases as they were put to the jury.

[4] In summing up to the jury, the trial judge summarised the allegations about the operations performed by the appellant as follows:[1]

“The prosecution contends that the operations were unnecessary or inappropriate.

Removal of Mr Morris’s sigmoid colon is said to have been inappropriate, mainly because the bleeding problem that the surgery was to address was sourced in his rectum.

The surgery on Mr Vowles is said to have been inappropriate because, contrary to what the Accused supposed, Mr Vowles did not then have colon cancer.

With both Mr Phillips and Mr Kemps, the primary contention is that the patient’s health was too precarious for an oesophagectomy.”

[5] The prosecution case, as put to the jury, was not that lack of skill or failure to use reasonable care in the course of the operations caused the death of Mr Morris, Mr Phillips or Mr Kemps, or the grievous bodily harm suffered by Mr Vowles. The trial judge directed the jury that the trial was “not about botched surgery” but was instead “about surgery performed competently enough”;[2] that it was “not how the Accused performed surgery that matters in these four cases” and that what mattered was “his judgment in deciding to commend the surgery to a patient and, having obtained [the] patient’s consent, in taking the patient to theatre to perform it.”[3] In that respect, the case put to the jury in relation to each patient was that the appellant should not have embarked upon the surgery notwithstanding that each patient had consented to it.

[6] The prosecution alleged that the appellant breached the duty imposed upon him by s 288 of the Code by proceeding to operate upon the patient. Section 288 of the Code provides:

“It is the duty of every person who, except in a case of necessity, 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, 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.”

[7] Section 300 of the Code provides that a person who unlawfully kills another is guilty of a crime, which is called murder or manslaughter, according to the circumstances of the case. The charges of manslaughter were brought under s 303 of the Code, which provides that any person who unlawfully kills another under such circumstances as not to constitute murder is guilty of manslaughter. Section 291 provides that it is unlawful to kill any person unless such killing is authorised or justified or excused by law. In each case the prosecution alleged that the application of s 288 in combination with s 291 rendered the appellant guilty of unlawful killing. The charge of unlawfully doing grievous bodily harm was brought under s 320, which provides that any person who unlawfully does grievous bodily harm to another is guilty of a crime. The prosecution case was that the application of s 288 in combination with s 320 rendered the appellant guilty of that offence.

[8] During the trial the prosecutor sought to advance cases of manslaughter and grievous bodily harm without reference to s 288. The effect of the prosecutor’s argument was that each case could be established by proof that (1) the performance of the operation caused the patient’s death, or grievous bodily harm, (2) that was not an event that occurred “by accident” within the meaning of s 23 of the Code and (3) it was not reasonable to perform the operation, so that the excuse from criminal responsibility in s 282 was excluded. Section 282 provided at the relevant times:[4]

“A person is not criminally responsible for performing in good faith and with reasonable care and skill a surgical operation upon any person for the patient’s benefit, or upon an unborn child for the preservation of the mother’s life, if the performance of the operation is reasonable, having regard to the patient’s state at the time and to all circumstances of the case.”

The prosecutor contended that proof beyond reasonable doubt of (2) and (3) would establish the unlawfulness of each killing and of the grievous bodily harm. No other possible authority, justification, or excuse was available.

[9] In Ruling No 3[5] the trial judge rejected that argument. For present purposes it is necessary only to summarise the trial judge’s conclusions, which were derived from textual, contextual, and historical considerations. The trial judge held that s 288 applied only where the patient had consented to the surgical treatment and s 282 applied only where there had not been an effective consent: “one concerns outcomes where there has been consent to the procedure; the other, where there has not” and it is “a necessary implication, to be derived from s 288 in context, that surgery with consent is lawful, with the surgeon’s criminal responsibility in such circumstances to be determined by enquiring whether there has been a breach of the duty the section imposes.”[6] Each of the four patients was a mentally competent adult who consented to the operation with knowledge of its nature and the attendant risks. The trial judge accepted defence counsel’s argument that in those circumstances the appellant’s criminal responsibility depended upon proof of a contravention of the duty imposed upon him by s 288. The prosecution cases were put to the jury on that basis.

[17] The trial judge found support for that meaning of “surgical treatment” in Royston Cook,[11] in which the issue concerned the meaning of “surgical or medical treatment” in s 298 of the Code. Section 298 provided:

“When a person does grievous bodily harm to another, and such other person has recourse to surgical or medical treatment, and death results either from the injury or the treatment, he is deemed to have killed that other person, although the immediate cause of death was the surgical or medical treatment, provided that the treatment was reasonably proper under the circumstances, and was applied in good faith.”

[18] In Royston Cook the court held that the word “treatment” in s 298 comprehended the non-administration of anti-coagulant drugs by a surgeon who performed an operation upon a patient who had been stabbed by the accused. The patient died after a blood clot blocked an artery. In a passage quoted by the trial judge, Lucas J, with whom Kelly and Sheahan JJ agreed, said:[12]

“Section 298, in my opinion, applies only in a case in which it is established that the immediate cause of a person’s death was the surgical or medical treatment administered to him. The reason why the learned judge thought that s. 298 had no application was because he did not think that the word ‘treatment’ in that section extended to cover the non-administration of the anti-coagulant drugs which, of course, was as a result of the deliberate decision which had been arrived at by the doctor in charge of the case. In my opinion, the non-administration of those drugs in these circumstances does constitute treatment within the meaning of s. 298. We were referred to the definition of that word used in the medical sense in the Shorter Oxford English Dictionary which says that the word means management in the application of remedies, medical or surgical. In my opinion, the word ‘treatment’ in s. 298 extends to the whole management of the patient, to everything that is done in accordance with that management, and also to things which are not done as a result of a decision which is deliberately taken with regard to the management of the patient.”

[19] The trial judge acknowledged that the reference to “treatment” in s 298 was found in a context which differed from s 288, but concluded that there was no factor, textual, historical or practical, which required a different content to be given to “surgical…treatment” in s 288. Accordingly, the trial judge accepted the prosecutor’s contention that s 288 “captures a case where it was wrong to undertake the surgery at all, as well as cases where the surgery was done poorly”[13] and ruled that the appellant was “not absolved from criminal responsibility for the adverse outcomes for his patients merely because he had their consent to the procedures and (if it be the fact) performed them with reasonable skill and care”.[14]

[20] That ruling was reflected in the trial judge’s directions to the jury that s 288 imposed a duty upon a surgeon, not merely to carry out a surgical procedure competently, but that:[15]

“He must also have reasonable skill and exercise reasonable care in deciding to commend the surgery to his patient and, where the patient [consents] to the procedure, in deciding to act on the patient’s wishes to proceed to carry out the procedure.

Administering ‘surgical…treatment’ encompasses the surgeon’s judgment that the procedure should be commended to the patient and, should the patient consent, whether the surgeon should carry it out.”

[21] Similarly, the trial judge directed the jury that it must be satisfied beyond reasonable doubt that the appellant’s “decision to perform the surgery in question involved such a great falling short of the standard to have been expected, and showed such serious disregard for the patient’s welfare, that he should be punished as a criminal: in other words, that his decision to operate was so thoroughly reprehensible, involving such grave moral guilt, that it should be treated as a crime deserving of punishment.”[16] Only the emphasised parts of those directions are in issue. The other directions concerned the nature and degree of the lack of skill or carelessness which might justify a finding of guilt (which, for ease of reference, we will call “criminal negligence”). There is no issue about the appropriateness of the trial judge’s directions about criminal negligence.

[28] The effect of the argument was that s 288 applied in relation to an offence committed by an omission to perform a duty imposed by that section but it did not apply in relation to an offence committed by the performance of a positive act.

[29] The argument should not be accepted. Section 2 of the Code provides:

Definition of offence

An act or omission which renders the person doing the act or making the omission liable to punishment is called an offence.”

Section 288 creates consequences for any omission to observe or perform a duty in administering surgical or medical treatment. The relevant “omission” is an omission to observe or perform a duty, not an omission to perform an act. The duty might require the person bound by it either to perform an act or to refrain from performing an act. It follows that s 288 may be invoked in a prosecution for unlawful killing, or doing grievous bodily harm, where the death or harm is alleged to result either from a positive act of the accused or an omission by the accused in administering surgical or medical treatment.

The antecedent common law and the historical development of the Code

[45] As the trial judge observed in Ruling No 3, whilst the text of the Code primarily supplies its meaning there are circumstances in which reference to the antecedent common law is justifiable.[36] One such circumstance is where the Code contains provisions which are ambiguous or of doubtful import.[37]

[46] The trial judge referred to the common law, and to the historical development of the provisions which became s 282 and s 288 of the Code, in the following passage in Ruling No 4:[38]

“At common law, the general rule was that serious bodily injury intentionally inflicted on another was unlawful despite a victim’s consent.

‘Reasonable surgical interference’ was an exception, being ‘needed in the public interest’: Attorney-General’s Reference (No. 6 of 1980) [1981] EWCA Crim 1; [1981] 1 QB 715, 719; cf. R v Brown [1994] 1 AC 212, 231-232; 242; 245; 266.

A competent patient’s consent rendered surgical intervention lawful.

As was said in Department of Health & Community Services v JWB & SMB (‘Marion’s Case’) [1992] HCA 15; (1992) 175 CLR 218, at p. 234:

‘The factor necessary to render such treatment lawful when it would otherwise be an assault is … consent.’

Sir James Fitzjames Stephen, ‘that very celebrated criminal lawyer, jurist and judge’ (Queensland, Second reading of Criminal Code Bill, Legislative Assembly, 8 November 1898, p. 1056 (Queensland Minister for Justice)), wrote in Article 204 of his A Digest of the Criminal Law (Crimes and Punishments) (3rd ed, 1883) p. 141, under the heading, ‘Right to Consent to Bodily Injury for Surgical Purposes’:

‘Every one has a right to consent to the infliction of any bodily injury in the nature of a surgical operation upon himself … but such consent does not discharge the person performing the operation from the duties hereinafter defined in relation thereto.’

His footnote said:

‘I know of no authority for these propositions, but I apprehend they require none. The existence of surgery as a profession assumes their truth.’

The duties Stephen defined included that specified in Article 217 (pp. 149-150 under the heading ‘Duty of persons doing acts requiring special skill or knowledge’):

‘It is the duty of every person who undertakes … to administer surgical or medical treatment, or to do any other lawful act of a dangerous character, and which requires special knowledge, skill, attention, or caution, to employ in doing it a common amount of such knowledge, skill, attention and caution.’

Stephen’s draft Criminal Code was substantially adopted in the English Criminal Code Bill 1880 (Vict) (see preface to Stephen’s Digest, 3rd ed). Relevantly, the Bill provided:

‘158. Duty of persons doing dangerous acts.

Every one who undertakes … to administer surgical or medical treatment, or to do any other lawful act the doing of which is or may be dangerous to life, is under a legal duty to have and to use reasonable knowledge skill and care in doing any such act, and is criminally responsible for omitting without lawful excuse to discharge that duty if death is caused by such omission.’

The proposal was influential in Queensland.

Sir Samuel Griffith, in an explanatory letter to the Attorney-General (‘Draft of a Code of Criminal Law prepared for the Government of Queensland with Explanatory Letter, Table of Contents and Table of Statutory Provisions superseded’, presented to both Houses of Parliament, Brisbane, 1897), stated:

‘In 1878 Lord Blackburn, Mr Justice Barry (of Ireland), Mr Justice Lush, and Sir James Fitzjames Stephen, were appointed by Royal Commission to be Commissioners to report on the provisions of a Draft Code of Criminal Law which had then lately been prepared in England. They submitted as an Appendix to their Report a Draft Code settled by them, which, with some modifications, was introduced into the House of Commons as a Bill in the session of 1880, but did not become law. I have freely drawn upon the labours of these distinguished lawyers, especially with respect to the statement of rules of the Common Law and the definition of Common Law offences.’

In his draft code, Griffith referenced the Criminal Code Bill 1880’s s 158, proposing for Queensland:

‘295 Duty of Persons Doing Dangerous Acts

It is the duty of every 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: and he 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.’

Stephen’s choice of words had been modified slightly: ‘…duty to have and to use reasonable knowledge skill and care in doing any such act…’ became ‘…to have reasonable skill and to use reasonable care in doing such act…’.

Griffith’s proposal, like Stephen’s, took for granted that consent absolved a surgeon of criminal responsibility for misadventure, unless the way in which the procedure was carried out was culpably negligent.

Historical considerations also explain why s 282 deals not only with reasonable skill and care in performing the surgery – as does s 288 – but also with the reasonableness of undertaking the procedure at all.

Stephen (Digest p.141), in Article 205, under ‘Surgical Operation on Person Incapable of Assent’, wrote:

‘If a person is in such circumstances as to be incapable of giving consent to a surgical operation, or to the infliction of other bodily harm of a similar nature and for similar objects, it is not a crime to perform such operation or to inflict such bodily harm upon him without his consent or in spite of his resistance.’

Illustrations are provided in Article 205. The first concerns a person who is ‘rendered insensible by an accident which renders it necessary to amputate one of his limbs before he recovers his senses’. ‘The amputation of his limb without his consent is not an offence’; or if the accident made him ‘mad, the amputation in spite of his resistance would be no offence’, Stephen wrote.

These ideas found expression in s 68 of the Criminal Code Bill 1880. Headed ‘Surgical Operations’, it provided:

‘Every one is protected from criminal responsibility for performing with reasonable care and skill any surgical operation upon any person for his benefit: Provided that performing the operation was reasonable, having regard to the patient’s state at the time, and to all the circumstances of the case.’

Griffith altered it by adding a reference to an operation ‘upon an unborn child for the preservation of the mother’s life’. Last year, that exemption from criminal responsibility was extended to encompass ‘medical treatment’: see Criminal Code (Medical Treatment) Amendment Act 2009. These changes have no present significance.

s 282 conditions exemption from criminal responsibility on the performance of the operation being reasonable because it was intended to cope with surgery performed without consent. More is said on this topic in the reasons for my Ruling on Wednesday, 2 June 2010. See also Queensland Law Reform Commission, Consent to Health Care of Young People, Report No. 5 (December 1996) pp. 28, 40.

Whether by oversight or design, Stephen’s Code did not, expressly at any rate, envisage that harm resulting from competently conducted surgery to which the patient had consented, influenced by misdiagnosis or a surgeon’s poor judgment, would attract criminal responsibility.

Historical considerations, however, cannot prevail over the text if its meaning is plain: R v Barlow (1997) 188 CLR 1, 18-19. See also R v LK; R v RK [2010] HCA 17; (2010) 266 ALR 399 at [96][97].”

[47] In our respectful opinion the historical considerations identified in that passage do not favour the construction advocated for the appellant.

[48] The decisions in Attorney-General’s Reference (No 6 of 1980) and R v Brown to which the trial judge referred are consistent with the view that a surgeon might be held responsible for criminal negligence in embarking upon surgery where the patient had consented to the surgery. That was not in issue in either case, but it is consistent with the description of the permissible conduct as “reasonable surgical interference”,[39] “necessary surgery” or “reasonable surgery”,[40] and “proper medical treatment, for which actual or deemed consent is a prerequisite”.[41] More directly, in R v Bateman,[42] Lord Hewart CJ said:

“As regards cases where incompetence is alleged, it is only necessary to say that the unqualified practitioner cannot claim to be measured by any lower standard than that which is applied to a qualified man. As regards cases of alleged recklessness, juries are likely to distinguish between the qualified and the unqualified man. There may be recklessness in undertaking the treatment and recklessness in the conduct of it. It is, no doubt, conceivable that a qualified man may be held liable for recklessly undertaking a case which he knew, or should have known, to be beyond his powers, or for making his patient the subject of reckless experiment. Such cases are likely to be rare. In the case of the quack, where the treatment has been proved to be incompetent and to have caused the patient’s death, juries are not likely to hesitate in finding liability on the ground that the defendant undertook, and continued to treat, a case involving the gravest risk to his patient, when he knew he was not competent to deal with it, or would have known if he had paid any proper regard to the life and safety of his patient.

The foregoing observations deal with civil liability. To support an indictment for manslaughter the prosecution must prove the matters necessary to establish civil liability (except pecuniary loss), and, in addition, must satisfy the jury that the negligence or incompetence of the accused went beyond a mere matter of compensation and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment.”

The emphasised passages are consistent with the trial judge’s construction of s 288.

[49] The common law was expressed in similarly broad terms in the first edition of Halsbury:[43]

“Any person, whether a registered medical practitioner or not, who deals with life or health, is bound to have competent skill, and, if a patient under his charge dies for want of such skill, he is guilty of manslaughter. Similarly, a person, whether he has received a medical education or not, who is guilty of gross carelessness in the application of a remedy, is liable to be convicted of manslaughter if death ensues in consequence of his act; but he can only be convicted if he has been guilty of the grossest ignorance or of criminal inattention.”[44]

[50] The extract from Department of Health & Community Services v JWB &

SMB quoted by the trial judge does not support a contrary view. Immediately following that passage, Mason CJ, Dawson, Toohey and Gaudron JJ observed:[45]

“The Code [Criminal Code Act 1983 (NT)] impliedly treats non-consensual medical treatment as an assault by making it a form of ‘grievous harm’ which may be consented to (s. 26(3)).”

There is no similar provision in the Queensland Code. In any event, the fact that consent renders medical or surgical treatment lawful when it otherwise would be unlawful provides no support for the appellant’s construction of s 288. The expression “lawful act” in s 288 indicates that the administration of the surgical or medical treatment to which that section refers is otherwise lawful treatment, but s 288 nevertheless renders the person administering the treatment responsible for those consequences to the life or health of the recipient which result from any omission to observe or perform the statutory duty to have reasonable skill and to use reasonable care in administering the treatment.

[51] The reference in article 217 of Stephen’s Digest to a surgeon’s duty “to employ in doing it [administering surgical treatment] a common amount of such knowledge, skill, attention and caution”[46] comprehends a duty both in proceeding with the treatment and in the course of it, for much the same reasons that such a duty is comprehended by the text of s 288. That article, like the later versions of it discussed by the trial judge, was intended to incorporate the common law duty to use skill and care in administering treatment. In none of the material to which the trial judge referred was there any indication of a legislative policy to exclude from the scope of s 288 criminal negligence in embarking upon treatment. The Court was not referred to any evidence to that effect.

[52] Accordingly, reference to the antecedent common law provides further support for the trial judge’s construction of s 288.

Conclusion: the proper construction of s 288

[53] The rule that statutes creating offences are to be strictly construed applies only where the statute remains doubtful or ambiguous after applying the ordinary rules of construction.[47] There is no such residual ambiguity in s 288. It applies both in relation to criminally negligent acts or omissions in the course of performing surgery and criminally negligent acts or omissions in performing surgery at all. The trial judge’s construction of s 288 should be affirmed.

Brisbane Barrister – David Cormack

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