Welcome to 2015. This is the first blog of the year but it’s reporting on a case that was decided last year and I thank Geoff and ‘nwa’ for drawing this case to my attention.

I have previously reported on the case of Dr Dekker in Western Australia (see `Improper professional conduct when a doctor fails to render assistance at a motor vehicle accident’ (November 28, 2013)). On 27 April 2002, around 6.15pm, Dr Dekker was stopped at an intersection when another car, travelling at an excessive speed, veered towards her. Dr Dekker moved out of the way and the other car passed behind her, left the road and rolled into a ditch.   Dr Dekker could infer that there had been an accident and that people may need care but she did not try to assess the injured, rather she drove to the local police station to report the matter. At the time of the accident it was dark and Dr Dekker had no torch, first aid kit or mobile phone.

Dr Dekker was originally convicted of causing the accident but her conviction was set aside on appeal (Dekker v State Of Western Australia [2009] WASCA 72). Dr Dekker was also charged with, and found guilty of, improper professional conduct for failing to stop and render assistance at the accident (Medical Board of Australia v Dekker [2013] WASAT 182).  Dr Dekker appealed that decision and now some 12 years after the event, the finding of improper professional conduct has also been set aside (Dekker v Medical Board of Australia [2014] WASCA 216 (21 November 2014)).

This case was an appeal from the decision of the State Administrative Tribunal that was made up of 4 members, a legal member, two medical practitioners and a lay member. At [23] the Supreme Court IMartin CJ, Newnes and Murphy JJA) said (at [23]):

The Tribunal said that the test for ‘improper conduct’ was conduct falling short of ‘infamous conduct’, but nevertheless conduct ‘which would reasonably be regarded as improper by professional colleagues of good repute and competency’.

The Court accepted that this was the relevant legal test ([40]). The issue on appeal was whether or not the Medical Board had led sufficient evidence to prove the allegation.   Because of that this case is really more about procedure rather than what can be expected of a doctor at an accident, and that is a matter that will be subject to further comment below.

No specific duty to aid at a car accident

The Tribunal had come to the conclusion that a doctor has a specific duty to stop at a car accident.   The Supreme Court rejected that conclusion. At [79] they said:

The duty, as formulated, arises without regard to the mental state of the doctor, the circumstances in which the doctor is, or may be, aware that a motor vehicle accident has occurred in his or her vicinity, and the circumstances of the accident. The duty as formulated would apply, for example, to a medical practitioner who lacked mental capacity or, for example, was affected by alcohol (eg, a doctor who has been drinking and takes a cab on the way home at the end of a long social evening). The duty would apply even if there were other emergency services on their way or already in attendance. It would apply irrespective of whether the doctor has other medical commitments (eg, if the doctor were on his or her way to perform an urgent operation). It would also apply irrespective of other, non-medical, commitments that the doctor may have (eg, a doctor on the way to a court to give evidence in answer to a subpoena). The duty as formulated would also require performance irrespective of the location of the accident. Thus, it would apply equally in a remote location in the bush where there is no town and no ready access to police or other emergency services, as in a city where the occupants of the vehicle or passers-by may be readily in a position to contact police or ambulance services. It would also require the doctor to attend where, in the circumstances in which the doctor is made aware of the accident or possible accident, it would appear that any injury would be minor.

Given the myriad and unforeseeable circumstances that can arise it is not possible for a general obligation to exist. (Here is it interesting to note that the Court’s reasoning is similar to the reasons of the dissenting judge, Mahoney JA, in Lowns V Woods (1996). Aust. Torts. Reps ¶81-376).

Critically for the Supreme Court was the question of proof. Although there were two medical practitioners on the Tribunal, it was not open to them to decide what ethical duties were owed by doctors based on their own opinion:

For there to be any relevant professional duty to that effect where improper conduct is alleged, it would need to be an ethical obligation generally accepted within the medical profession in 2002. A finding of a specific duty not generally accepted within the medical profession in 2002 would not be relevant, in that it would be tantamount to a ‘personal opinion’ held by the members of the Tribunal as to the standard of behaviour required.

Accordingly the Tribunal could not find that there was some specific duty relating to car accidents and doctors without their being evidence led by the Medical Board, and open to challenge by Dr Dekker, as to the nature and scope of that duty.

The court found that the Tribunals finding that there was a specific duty was an error of law both because there is no such duty and because they found that there was a duty without any evidence to support that conclusion.

Conduct ‘which would reasonably be regarded as improper by professional colleagues of good repute and competency’

In the absence of some specific duty, Dr Dekker would still be guilt of improper professional conduct if her conduct ‘would reasonably be regarded as improper by professional colleagues of good repute and competency’. That is a question of fact, not law, that is the issue is not what the law says but what professional colleagues whould say. The non-medical members of the Tribunal (the judge and the lay member) could not reach a conclusion on that matter without the benefit of expert evidence.

There may be some issues that the medical members could form a conclusion on as the matter is uncontroversial. A Tribunal might be able to accept the advice from the two medical members that a sexual relationship between doctor and patient is ‘regarded as improper by professional colleagues of good repute and competency’ but this case was not of that type.

The Court said (at [90]):

In this case, a finding of fact by the non-medical members that the appellant’s conduct would be regarded as improper by professional colleagues of good repute and competency generally was made in the absence of any expert evidence to that effect… [and] there was no identifiable knowledge or experience which the medical members were themselves drawing on to form their own conclusory opinion beyond what they understood to flow from a general duty or norm to care for the sick. If the medical members merely had a personal conviction that the appellant’s conduct was improper, that was insufficient.

She could and should have done something

Even if there was some obligation to act, there has to have been something Dr Dekker could have done. The Tribunal found that Dr Dekker could have illuminated the scene with her car headlights. The Court again found that this conclusion was made without evidence and (at [97]):

In the absence of any evidence of the topography of the location and the position of the other vehicle, there was no basis on either the agreed or otherwise found facts to infer that there was ‘no reason’ that the appellant could not have used the headlights of her car to illuminate sufficiently the other vehicle for the purpose of rendering medical assistance. The Tribunal thereby erred in law.

Dr Dekker claimed that she was in a ‘state of shock’, ‘petrified’ and ‘freaked out’ as a result of the incident. No-one called evidence as to what that might mean or what effect that may have had on her performance. The Board did not seek to argue that her capacity to drive to the police station, or call the police to describe her behavior, to argue that she could have helped. The Court said (at [125]):

… any conclusory finding of improper conduct would have depended upon a finding of fact that the appellant was physically able to render medical assistance. The onus was on the Medical Board to prove that fact. Presumably evidence as to the practitioner’s state could have been led from the passenger in her vehicle or from the police to whom she reported the incident.

In the absence of that evidence there was no basis to reach the conclusion that she was ‘physically able to render medical assistance’.

Discussion

As noted above, this case is really about procedure. The errors of law were based on the Tribunal reaching various conclusions without having received relevant evidence to allow those conclusions to be draw. As a result this is not a binding precedent on what is or is not a doctor’s duty in a particular case or in general. It would be open to the Medical Board, in another case, to lead evidence of the type that they did not lead here, so they could lead evidence as to what reputable practitioners expect and whether or not the profession expects doctors to always stop and render assistance at an accident.

With respect to a general duty to assist, the Court did identify how difficult it would be to formulate such a duty and as noted, that was similar to the dissenting opinion in the NSW case of Woods v Lowns.   Woods v Lowns was a case dependant on its particular facts including that the doctor was at work ready, willing and able to see patients and the doctor made various admissions as to what would be expected of a practitioner and what he could have done had he been called. That case turned on the question of whether or not the girl who went for the doctor went to the right house; she said she asked the doctor to attend and he denied ever being asked. The trial judge preferred her evidence to his.   In the Court of Appeal the majority upheld the trial judge’s conclusions that in the unique circumstances of that case there was a duty to attend, but how far that precedent extends is still unclear as there have been no further cases, until this case, on the question of a doctor’s duty to assist a stranger in an emergency.   This case has again moved back to the position that there is no general duty to aid a stranger. As noted above, however, it would remain open, in a future case, for the Medical Board to lead expert evidence as to what the profession would expect from a member in a particular case and a doctor who is able, but refuses to assist in an emergency, could still be subject to professional condemnation.

Road Traffic Act 1974 (WA) s 54

Although it was not raised in this case, the Road Traffic Act imposes obligations upon drivers involved in incidents that cause death or injury. A driver ‘involved in an incident occasioning bodily harm to another person … must stop immediately after the occurrence of the incident and for as long as is necessary [and] … must ensure that each victim receives all the assistance, including medical aid, that is necessary and practicable in the circumstances.’

Dr Dekker was not ‘involved’ in an accident with the other vehicle but she was, in my view, involved in an ‘incident’. She didn’t stop; she drove to the police station. She did not render assistance but by attending the police station she ensured that the victims received the necessary assistance.

Even if she was guilty of an offence under this section (and in all the circumstances I can’t believe she was guilty) that would not render her guilty of improper professional conduct as a medical practitioner. In an earlier case dealing with advertising, the Queensland Supreme Court had said:

… that in order to justify an adverse finding against a medical practitioner it was not sufficient merely to prove that he had breached one or more by-laws … It was necessary to prove that his conduct amounted to ‘misconduct in a professional respect’. (Dekker v Medical Board Of Australia [2014] WASCA 216, [57] citing Medical Board of Queensland v Cooke [1992] 2 Qd R 608, 616).

Conclusion

My correspondent ‘naw’ in a comment on my earlier post said that the outcome of this case was that ‘Common sense prevails…’ I’m not sure where ‘common sense’ points. The community probably does expect medical practitioners to assist in a sudden emergency but due allowance ahs to be given when the practitioners are involved in the event, not mere passers-by.

This case has not, ultimately, delivered binding conclusions on what can or should be expected from a practitioner but has affirmed that where there is an allegation that the doctor’s conduct, in the circumstances, was deserving of professional condemnation, it is up to the complainant to lead evidence as to what is expected by the profession and also to lead evidence as to what the respondent practitioner could and should have done.

The biggest criticism of this case is the time it has taken. In April 2002 Dr Dekker was involved in a near miss accident and she has spent 12 years responding to allegations that she was at fault both criminally and professionally. A justice system that takes 12 years and two trips to the Court of Appeal may be thorough, but it is inefficient and traumatic for all involved.   This delay was commented on by the Supreme Court (at [128]) and was one of the reasons given by the Court for making a final order to dismiss the allegation against Dr Dekker, rather than referring the matter back to the Tribunal for a new hearing that would, in effect, ‘enable the Medical Board to have another opportunity to ‘improve’ its case’ ([126]).

The end result is that (absent any appeal to the High Court), Dr Dekker can now walk away from that accident with a clear record.