HEALTH LAW
Criminal liability and the provision of health services
By Jonathan Coates, partner, and Holly Hedley, law clerk, Buddle Findlay
In July this year, Dr Jayant Patel, a surgeon and Australia’s notorious “Dr Death”, was sentenced to seven years’ imprisonment for the manslaughter of three of his patients (R v Patel [2010] QSC 198, [2010] QSC 199, and [2010] QSC 233).
Each of the manslaughter cases involved Dr Patel performing surgeries that were inadvisable in the circumstances and were, as the Court described “in a word, unnecessary” (R v Patel [2010] QSC 233 at [69]). In one case, a sigmoid colon removal was found to be inappropriate as the bleeding problem that the surgery was intended to rectify was actually located in the patient’s rectum. In the other two cases, Dr Patel recommended and carried out surgical procedures that were entirely inadvisable, as the patients’ conditions were too precarious to justify surgery.
Dr Patel was found guilty of manslaughter by criminal negligence. As stated by the Court, the jury found that “[Dr Patel’s] decision to operate was so thoroughly reprehensible, involving such grave moral guilt, that it should be treated as a crime deserving of punishment” ([2010] QSC 233 at [69]).
Dr Patel is the first doctor in Australia to be convicted of the manslaughter of a patient since 1843 (I Dobinson, “Medical Manslaughter”, (2009) 28 QULJ 101). Naturally, as a case that captured the public’s attention, Dr Patel’s conviction prompts discussion about the potential criminal liability for negligent health professionals in the New Zealand context.
Criminal liability in the New Zealand health law context
Leaving aside the offences which involve health professionals intentionally harming patients such as those committed by Dr Fahey (rape) and Dr Shipman (murder), by far the most common avenue for criminal liability for health professionals in New Zealand will be a breach of the duties tending to the preservation of life in Part 8 of the Crimes Act 1961. In particular, section 151 (the duty to provide the necessaries of life), section 155 (duty of persons doing dangerous acts), section 156 (duty of person in charge of dangerous things), and section 157 (duty to avoid omissions dangerous to life). Pursuant to section 160(2)(b) of the Crimes Act, a breach of any of these duties that causes the death of a person can amount to culpable homicide.
Importantly, however, all of these duties are subject to section 150A. This section restricts criminal liability to situations where there has been a ‘major departure’ from the expected standard of care. A mere departure from acceptable practice (negligence simpliciter) will not suffice.
Section 150A provides:
“150A Standard of care required of persons under legal duties
(1) This section applies in respect of the legal duties specified in any of sections 151, 152, 153, 155, 156, and 157.
(2) For the purposes of this Part, a person is criminally responsible for—
(a) Omitting to discharge or perform a legal duty to which this section applies; or
(b) Neglecting a legal duty to which this section applies—
only if, in the circumstances of the particular case, the omission or neglect is a major departure from the standard of care expected of a reasonable person to whom that legal duty applies in those circumstances.
History of section 150A of the Crimes Act
Before the addition of section 150A, liability for a breach of the duties in Part 8 of the Crimes Act only required a finding of negligence simpliciter. As stated by the Court of Appeal in R v Yogasakaran [1990] 1 NZLR 399 at 402, one of the leading manslaughter cases of the time: “[It is] understood to be settled law in New Zealand that under our Crimes Act, … no more than ordinary negligence need be proved to warrant a finding of manslaughter in breach of the duty”.
Interestingly, the Court of Appeal in Yogasakaran did discuss the low threshold of ‘ordinary negligence’ for criminal liability and recognised that it might “seem at first sight too severe” (at 402). However, the Court justified the severity by noting the requirement of proof of causation beyond reasonable doubt, and by commenting on the wide judicial discretion available for penalties.
However, despite the Court of Appeal’s approval of the ordinary negligence test, during the 1990s, a number of factors combined to bring about the introduction of section 150A and the ‘major departure’ test.
The catalyst was an increasing number of manslaughter prosecutions being brought against health professionals. Between 1982 and 1997, there were eight manslaughter prosecutions brought against health professionals. Four of these professionals were anaesthetists, while the other four were a nurse, a surgeon, a dentist, and a radiologist (PDG Skegg, “Criminal Prosecutions of Negligent Health Professionals: The New Zealand Experience” (1998) 6 MedLRev 220).
In some of these cases, the actions of the health professional prosecuted were not what would normally be described as cases involving grave moral guilt. For example, Dr Yogasakaran was an anaesthetist who, during an emergency situation, administered the incorrect drug to the patient. The drug had been placed in the wrong drawer by mistake and Dr Yogasakaran relied on the labelling on the drawer without double checking the packaging itself. Dr Yogasakaran was convicted of manslaughter for his omission to take reasonable care. He was convicted and discharged.
As a result of these increasing prosecutions, the medical profession began a strong lobbying campaign for legislative change and, eventually, Sir Duncan McMullin was appointed to review sections 155 and 156 of the Crimes Act. As stated by the Minister of Justice at the time, “[The doctors] came to me, and I asked Sir Duncan McMullin to prepare a report” (NZPD, 6 Nov 1997, at 5207, as cited in K Dawkins, “Medical Manslaughter” [1998] NZLJ at 422-423).
In his report, Sir Duncan recommended that the Crimes Act be amended to include the ‘major departure’ test that is now embodied in section 150A (The Report of Sir Duncan McMullin to the Minister of Justice on Sections 155 and 156 of the Crimes Act 1961 (Wellington, 1995)). In making this recommendation, Sir Duncan criticised the ‘ordinary negligence’ standard for being insufficient to reflect the grave nature of criminal liability, for being out of step with the law in comparable jurisdictions, and for encouraging defensive medicine.
Sir Duncan also recommended that the phrase a ‘major departure’ be used in preference to the ‘gross negligence’ terminology that was used in England. However, it was always intended that the degree of fault required by section 150A would be equivalent to the degree of fault that amounted to ‘gross negligence’ overseas.
Parliament gave effect to Sir Duncan’s recommendations, and, as a result, the major departure test in section 150A was added in 1997.
What is a ‘major departure’?
The major departure test in section 150A was intended to reflect the degree of fault that was required for ‘gross negligence’ in England. The ‘gross negligence’ test was described in R v Bateman (1925) 19 Cr App R 8 at 11 as follows:
“[W]hatever epithet be used and whether an epithet be used or not, in order to establish criminal liability the facts must be such that, in the opinion of the Jury, the negligence of the accused … showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving of punishment.”
The usual practice of judges is to give guidance to juries by referring to the English case law on ‘gross negligence’ (R v McKie (High Court, Dunedin T13/00, 3 August 2000, Justice Young at [30]). It can therefore be reasonably concluded that in New Zealand, a ‘major departure’ is a departure that in all the circumstances is so bad as to amount to a criminal act, or as stated in Patel at [69]: “such a great falling short from standard to have been expected … and showing such disregard for the patient’s welfare, that [the practitioner] should be punished as a criminal”.
Application of the major departure test
The ‘major departure’ test has now been applied by the Courts in a number of manslaughter cases. Examples include: a husband who was convicted for failing to provide the necessaries of life after he failed to call emergency services for 17 hours after his wife had taken an overdose of methadone (R v Hamer [2005] 2 NZLR 81), and a mother who was convicted for failing to provide the necessaries of life after she did not take her seriously injured child to hospital (R v Kuka [2009] NZCA 572 – the Nia Glassie case).
However, there has been only one prosecution of a health professional based on a breach of the Part 8 duties and this prosecution resulted in an acquittal. In March 2006, a midwife was prosecuted for the manslaughter of a baby born under her care. The prosecution alleged that the midwife breached the section 155 duty to provide the necessaries of life during her care of the mother. Among other matters, the Crown alleged that the midwife departed from the standard of care expected of a reasonable midwife by failing to seek emergency assistance when the baby was born without pulse and respiration. After deliberating for more than 11 hours, the jury acquitted the midwife (Skegg and Patterson (eds), Medical Law in New Zealand (Brookers, 2006) at 72).
The midwife case is a classic example of the exception proving the rule, demonstrating just how rare criminal prosecutions of negligent health professionals have become since the addition of section 150A. However, it must be remembered that there are other avenues of accountability for negligent health professionals, such as investigations by the Health and Disability Commissioner and investigations and discipline of professionals under the Health Practitioners Competence Assurance Act 2003. These organisations provide a thorough (and arguably more appropriate) system of accountability for health professionals who are performing below the expected standard.
A comparison with civil liability
While the ‘gross negligence’ test is a high threshold, it does not require a deliberate intention to harm. In other words, an inadvertent act can equate to gross negligence.
In contrast, since the Supreme Court’s decision in Couch v Attorney General [2010] 3 NZLR 149 earlier this year, it is now clear that inadvertent conduct cannot give rise to civil liability for exemplary damages for negligent acts causing personal injury. Exemplary damages for negligence will not be available “unless the defendant consciously appreciated the risk the conduct in question posed to the safety of the plaintiff and proceeded deliberately and outrageously to run that risk and thereby caused the harm suffered by that plaintiff” (at [110] per Justice Tipping).
The irony of the disparity between these two thresholds is obvious. As matters currently stand in New Zealand, a health professional could theoretically be convicted of manslaughter and sentenced to life imprisonment for conduct that would not satisfy the test for exemplary damages in the civil courts.
The effect of Patel
While Patel is an interesting case that contains some noteworthy discussion on the Queensland equivalent of section 155 (duty of persons doing dangerous acts), the decision is unlikely to have any significant impact on the law on criminal negligence for health professionals in New Zealand. In Patel, the Court applied the customary test for ‘gross negligence’ that has been repeatedly affirmed by the New Zealand Courts, with the Court stating that Dr Patel’s conduct was found to have been “so thoroughly reprehensible, involving such moral guilt, that [he] deserved to be punished as a criminal” (at [130]).
If anything, Patel serves as a useful reminder of the high threshold for criminal liability for negligent health professionals and emphasises the rarity of successful criminal prosecutions. Nevertheless, as Patel demonstrates, even with the high threshold of a ‘major departure’, or of ‘gross negligence’, a conviction for manslaughter remains a possibility. In fact, in theory at least, a successful criminal prosecution is more likely than a successful civil claim for exemplary damages against a negligent health professional.
NZLawyer magazine, issue 148, 29 October 2010