Thank you to my colleague, Ruth Townsend, for bringing the case of Dr Dekker to my attention. On 27 April 2002, Dr Dekker was driving near Roebourne in Western Australia. Around 6.30pm on a dark night, as she was waiting at an intersection a vehicle travelling at high speed approached her stationary car. Dr Dekker drove across the intersection allowing the other car to pass behind her. The second car left the road, mounted and embankment and rolled over. According to one report (‘‘Terrified’ doctor guilty after fleeing car crash scene’ Australian Doctor 26 November 2013) one person died in the accident.

Now, eleven and a half years later, Dr Dekker has been found guilty if improper professional conduct for failing to stop and render assistance at the accident (Medical Board Of Australia v Dekker [2013] WASAT 182). Following the accident Dr Dekker and her passenger drove to the nearby Roebourne Police Station and reported the near accident and that the other car may have been involved in a collision.

In 2002 Dr Dekker had no mobile phone, no torch and no first aid kit with her. She asked her passenger what they should do and the passenger suggested that they go to the police, which they did. Dr Dekker reported that ‘At that time, I was [in] a state of shock as well, I think. Yes. Yes. I didn’t know what was happening around me. I had no idea what was happening. I was in absolute shock from the moment of the near­miss, just before the near­miss’.

The Tribunal’s reasoning
The matter was heard by the Western Australia State Administrative Tribunal. The matter was determined as if the Medical Act 1894 (WA) was still in force as that was the relevant Act at the time. That Act has since been repealed, it was replaced by the Medical Practitioners Act 2008 (WA) which in turn has been repealed and replaced by the Health Practitioner Regulation National Law (WA) Act 2010 (WA).

The issue under the 1894 Act was whether or not the Doctor was guilty of ‘infamous or improper conduct in a professional respect ‘. In Allinson v General Council of Medical Education and Registration [1894] 1QB 750 it was said infamous conduct in a professional respect “would be [conduct] reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute’. Improper conduct ‘is conduct which falls short of “infamous conduct”. “It is constituted by something less than serious professional conduct that is nevertheless conduct which would reasonably be regarded as improper by professional colleagues of good repute and competency.

The Tribunal found that the doctor’s conduct in leaving without going to check on the occupants of the other vehicle, to determine if there were injuries and whether she could help, and if not the extent and nature of those injuries so they could be reported to the emergency services, was improper conduct in a professional respect. It would have been infamous conduct if she had left the scene and not reported the event at all.

With respect to conduct being conduct in a professional respect, the Tribunal said ‘a medical practitioner’s conduct may be ‘in pursuit of the practitioner’s profession’ even where it does not occur in the carrying out of medical practice, provided that there is a sufficiently close link or nexus between the conduct and the profession of medicine.’ The Tribunal was satisfied that link existed because she admitted that she suspected that there had been an accident and that there was potential for serious injury.

Would failing to render assistance be regarded as improper by other doctors? No other doctor’s gave evidence to answer that question. What the tribunal said (at [39]) was:

It is improper conduct in a professional respect for a medical practitioner who is aware that a motor vehicle accident has or may have occurred in their vicinity and that anyone involved has or may have suffered injury not to make an assessment of the situation, including the nature of any injuries and needs of persons involved, and render assistance, by way of first aid, when the practitioner is physically able to do so, notwithstanding that the practitioner immediately reports the matter to police or other emergency services. It matters not that there is no existing professional relationship between a medical practitioner and the persons involved in the accident. Because saving human life and healing sick and injured people is a core purpose and ethic of the medical profession, and because members of the profession have the knowledge and skills to do so, the failure by a medical practitioner to make an assessment and render assistance when he or she is aware that a motor vehicle accident has or may have occurred in their vicinity and that people have or may have been injured, when the practitioner is physically able to do so, would, notwithstanding that the practitioner reports the matter immediately to police or other emergency services, reasonably be regarded as improper by medical practitioners of good repute and competency, and there is a sufficiently close link or nexus with the profession of medicine.

The impact of that decision
Lawyers look to tribunals and courts for precedents, statements of the law that can be applied in future cases. The most significant precedents come from the High Court of Australia. The High Court sits at the top of the legal tree and its rulings are binding on all lower courts. As one come’s down the judicial hierarchy the precedent value diminishes. The State Administrative Tribunal of Western Australia is not a court and does not establish binding precedents for subsequent courts. But an Administrative Tribunal is charged with administering and interpreting the law for the benefit of the law’s users. Further, now that we have a national system of health registration what a tribunal in one state has to say will be influential in other states to ensure that the national system remains national – it can’t be improper conduct in one state, but not another. Of course the 1894 Act is no longer the Act in Western Australia or anywhere else, but the reasons set out above, could be applied to the current legal regime.

So this is not a decision of the Western Australian Court of Appeal which would be much more authoritative, but it is a decision of the tribunal charged with implementing the relevant laws and its reasoning is likely to be followed elsewhere.

But there’s no duty to rescue?
We are constantly told (or more accurately, I constantly say) there is no duty to rescue. A person is not under a duty to render assistance to a stranger in an accident. This ruling challenges that claim for medical practitioners but we need to make a distinction. When we say ‘there is no duty to rescue’ we are referring to the common law of negligence, that is one cannot be sued for failing to render assistance and Dr Dekker was not being sued for damages. If she was the matter would be in a court, not a tribunal, and the plaintiff would have to show a common law duty of care, and that if Dr Dekker had gone to help, the outcome would have been different. That is not what was happening here. Accordingly this case does not set aside the principle that there is no duty to rescue at common law.

But, the common law does ask what would a reasonable person do in the circumstances, and if it is improper conduct for a medical practitioner to fail to render assistance, then that could assist a common law court to find that a doctor is under a duty at least to stop and see if there assistance is required. That obligation would be compounded by the obligation under the (current) Western Australian Road Rules to render assistance at an accident (Road Traffic Act 1974 (WA) s 54, though that section in its current form was put in in 2007, ie well after this accident, but there was probably something similar in placed in 2002).

This was the reasoning that led the NSW Supreme Court to find a doctor owed a duty of care to render assistance when asked. In Lowns v Woods [1996] Aust Torts Reports 81-376 the court found that provisions in the NSW law that made it unsatisfactory professional conduct by a doctor to fail to render assistance when called upon to do so aided the Court to come to the conclusion that the doctor, in the very specific circumstances of that case, was under a legal duty to assist and was liable for failing to do so when, on the doctor’s own admission, he would have made a difference to the outcome.

People, including health professionals, report a fear that if they stop to render assistance they may be liable so, it is believed, the better course of action is not to stop. So far there are no cases of medical or other health professionals being liable for stopping to render assistance and this case, along with Lowns v Woods, have two cases where professionals have been liable (one for improper professional conduct, the other liable in negligence) for failing to render assistance. One might perceive a trend. Along with good Samaritan legislation that applies in all states and territories (thought the exact terms vary) it would seem that the policy of the law is that doctors are expected to get out and help when they can.

So why didn’t she help?
Dr Dekker did not stop and help because she did not realise there had been an accident, or because of fear of legal liability or because of fear for her own safety, and I think that’s part of the problem both for her, and for the legal system generally; let me explain.

Dr Dekker is in a near miss accident and is very shaken up. We might all accept that, for that reason, she is not thinking clearly and she goes to the police. She may also, reasonably I would have thought, have decided absent a telephone, torch or first aid kit, she was better off going to the police to summons help. She had a passenger and there is no explanation of whether or not that passenger could drive so no discussion about whether or not the passenger could have gone to get help and left Dr Dekker there.

No, the problem here is procedural. Dr Dekker gave different explanations of what happened. Five days after the accident she gave a statement to police where she said “As a medical doctor, I know there would be a bad injury and I know it was a waste of time so I go to police so they can get help” and her assessment that there would have been a bad injury was her “instinct as a doctor”. This contradicted later evidence, in a district court matter, that she was not sure whether or not there had been an accident. In her evidence before this Tribunal the doctor gave evidence about her knowledge of alcohol and drug abuse in the region and reports of violence. At the hearing it was conceded that statements about drug abuse and violence in Roebourne were not relevant, and statements about another town were even less relevant.

More importantly, despite giving evidence about alcohol and drug fueled violence, she admitted that was not what she was thinking about when she decided to drive off, so the material in her statements, written many years after the event, did not reflect or say that this was what caused her to drive off. Even if she had such fears, the Tribunal said (at 44):

In any case, even if the practitioner had been thinking of these issues [alcoholism, drug use and violent behaviour], they would not have absolved her from her professional obligation to make an assessment and render assistance to the occupants of the second vehicle. Furthermore … it was not reasonable to expect that the occupant or occupants of the second vehicle ‘would have been agitated and might have posed a risk to the [practitioner’s] personal safety’, given that the practitioner was aware, by instinct as a doctor, that they had suffered ‘a bad injury’. Of course, if the occupant or occupants of the second vehicle had threatened violence towards the practitioner, the practitioner would have discharged her professional obligation and could have driven to the police station.

It’s really important to bear this in mind and not react by claims that the Tribunal should have accepted that a woman, out of town in WA, on a dark night, should go to help even though she feared violence, because all that fear was suggested in evidence at the 2012 hearing, it was not what she said to police 5 days after the accident nor in the District Court three years after the event and in these proceedings she did not say that a fear of violence was what stopper her acting: “she conceded in cross­examination that these were not matters about which she was thinking at the time when she made the decision to leave the scene after the ‘near miss’ incident.” It does appear that the reference to alcohol, drugs and violence was an afterthought rather than an actual motivator.

The consistent story was that having been involved in a near miss she was shaken up and distressed. The Tribunal said (at 43)

The fact that the practitioner was ‘in a state of shock’, ‘petrified’ and ‘freaked out’ after the ‘near miss’ incident is hardly surprising in a case where a person is involved in an accident or in a near­miss situation. However, the practitioner was not simply ‘a shocked and distraught woman’, to quote Mr Morrissey’s submission, but rather a member of the medical profession who had gone through a no doubt frightening near­miss experience, but was thankfully physically unharmed, and was aware that another vehicle had or may have crashed in her vicinity. Because she is a member of the medical profession, and therefore a person with medical knowledge and skills to save life and to heal the sick and injured in the community, her professional duty required that she overcome or at least put aside the shock and provide assistance to the occupant or occupants of the second vehicle. Although the practitioner’s ‘shock’ may be relevant in relation to penalty, it does not have the consequence that her conduct would reasonably be regarded as anything other than improper (or, had she not immediately reported the matter to police or other emergency services, disgraceful or dishonourable) by professional colleagues of good repute and competency.

That, I think, is the interesting and controversial point. Should doctors be expected to ‘overcome or at least put aside the shock’? It may be reasonable to expect doctors to be able to deal with many situations that most of us could not in their professional setting, but is it a reasonable expectation when they themselves have been involved in the incident, or near miss, and their own life has been put at risk? Again we may expect that if they are Australian Defence Force practitioners on the battle field, but radiologists driving home from the tip?

Further the issue was whether or not her ‘professional colleagues of good repute and competency’ would, in the circumstances, consider her decision to go to the police as improper. The Tribunal thought they would, but on what basis the Tribunal could make that decision is not explained.

Legal lesson
There are two significant legal lessons from this decision. They are:
1. This adds to the weight of authority that doctors are under an obligation to assist when they are aware that their professional assistance is required and ‘when the practitioner is physically able to do so’. (And one can still imagine lots of circumstances including conflicting duties to others where a practitioner will be able to argue that they were not able to assist); and
2. Tell a consistent story – and that’s a process problem – this event has taken 11.5 years to resolve (and it’s not over yet, she’s got to go back to the Tribunal in February 2014, nearly 12 years after the event, to find out what her ‘penalty’ will be). Not surprisingly stories and recollections change, but trying to tell the story that you think will help (whether it is Dr Lowns saying he would have gone to help if asked and he would have been able to administer IV Valium even when experienced paramedics could not; or Dr Dekker hinting at fears of violence without actually saying that is what concerned her and then admitting it did not) really doesn’t help. Litigation lawyers forget nothing and are experts at turning up everything, so they will find the statement written in 2002 and compare it to the one in 2011 and point out every difference.