Was The Jury Right?

View from afar… (Dr Jim Wilkinson, retired anesthetist)



Much has been written and much said ( too much of the latter in my view) as provincial TV journalists rushed to interview the accusers of Dr Jayad Patel outside a  Queensland Court on March 13. Dr Patel has been found “not guilty” on a retrial of a case of alleged manslaughter – such retrial ordered by The High Court of Australia which had found errors of law at the first trial.

In my view, the jury has done the law and the community a service. Dr Patel clearly had multiple professional failings, this is not in dispute. But so did the incompetent administration that failed to check his bona fides properly, just as the same can be said of a regional hospital administration in the even more notorious Bega Calamity in southern  NSW. Did  Dr Patel deserve to be convicted in this case?

Let me take a broad view of the Patel case, at least the one decided yesterday, as a clinician.

The patient was an elderly male with heart disease as well as probable radiation damage on his pelvic organs from radiotherapy for cancer of the prostate. He was  clearly high risk, especially when he presented with rectal bleeding to Dr Patel.

We who are experienced clinicians know that bleeding anywhere in the gut can be very difficult to treat – either conservatively or invasively. Dr Patel decided to try to treat this by removing the part of the colon whence that bleeding came. He operated, the patient developed various complications and, 3 weeks later, he died from aspiration pneumonia. Whether each step in Dr Patel’s management was below an accepted professional standard were clearly issues if he had been sued for negligence. But this matter was not pursued in he civil courts, rather Dr Patel’s case was taken up by the DPP after complaints from a nurse, a so called “whistleblower”. It remains a matter of contention why the resident doctors or the anaesthetists who worked with Dr Patel seem to have been silent in  all this.

The key point for me in the whole case is the wise members of the jury returning to the court to seek clarification  from the learned trial judge ( at retrial) so they were certain what was meant by “gross negligence” – for this is at the heart of any case of manslaughter where negligence is alleged – and not just medical cases.

“Mere negligence” will not suffice for a conviction  of manslaughter. It must be a gross departure from accepted standards.

A seminal case (House of Lords) is  Bateman (1925) 19 Cr App R 8 where it was stated

“…in order to establish criminal liability, the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for life and safety of others as to amount to a crime against the State and conduct deserving punishment (at pp 11-12)

[emphasis added]

In a NSW case, R v Taktak (1988) 14 NSWLR 226 at 247C, Justice Yeldham cited with approval this extract from a charge to the jury by Brett J in R v Nichols:

“mere negligence will not do, there must  be wicked negligence, that is, negligence so great that you must be of the opinion that the prisoner had a wicked mind, in the sense that she was reckless and careless whether the creature died or not..”


Taktak involved gross negligence alleged when no help was obtained for a drug addict who died. The legal principle is the important thing  here.

In the leading English case of medical manslaughter ( R v Adamako), an anaesthetist was convicted as there was a single overriding specific duty that was neglected  (keeping  a paralysed anaesthetized patient connected to a ventilator) In the Patel case this seems not to have applied – Patel had to make professional choices between alternatives.

Thus it appears that the jury could not satisfy itself  that there was gross negligence on Dr Patel’s part, at least beyond reasonable doubt, the criminal standard. The jury would have to have been satisified that Dr Patel virtually didn’t give a damn whether the patient lived or died. The wise jury thought otherwise.

Had he been convicted a second time, the implications for medical practice may have been grim indeed – for any surgeon who manages a difficult high risk case, with multiple choices and factors to consider, would it seems be at risk of being charged with criminal manslaughter if the case goes “bad”.

There will be a lot of angry words yet about  Dr Patel from people close to the events in Bundaberg. He is clearly not a world beater as a surgeon and may have other cases to answer. But complications will happen and a doctor who simply makes wrong choices that are seen as such in the luxury of hindsight ( and who of us has never been in that situation?) should not  have his or her life ruined by legally untenable  prosecution.

14 Mar 2013

Dr Jim Wilkinson FFARACS  FANZCA

M Health Law ( Syd).

NOTE I am indebted to Ms Lucy McCallum of Counsel (as she was, now Justice McCallum SC of the Supreme Court of NSW) for case references cited above.