Some doctors are concerned about Jayant Patel’s conviction for manslaughter and his sentence to seven years imprisonment — not because they think he is badly done by but because the precedent may hurt other doctors.

When the  Queensland Public Hospitals Commission of Inquiry, known as the Davies Inquiry, recommended  manslaughter charges against Patel five years ago I was sceptical. Harry Bailey, the deep-sleep doctor who was responsible for the deaths of 25 patients in the 1970s, was not prosecuted. But attitudes have changed in the last 20 years.

Most deaths in surgery are caused by multiple factors such as equipment failures, inadequate supervision and information, use of wrong drugs or wrong doses, as well as the patient’s condition. That was not Patel’s case; he acted with reckless disregard for his patients’ welfare. These were intentional violations of established professional  rules and clinical protocols, not system problems.

Doctors are accountable for their actions. Sometimes the degree of recklessness and disregard for patients may be so egregious that criminal sanctions apply.

The Davies inquiry did uncover system problems but ones relating to the way Queensland Health continued to allow Patel to operate at Bundaberg Hospital despite complaints about his competence. There were 20 documented complaints against Patel that were either ignored or mismanaged, highlighting the importance of adequate and transparent complaints systems.

Thanks to public outrage about this case, there have been many changes both in the states and nationally. We now have one national medical board instead of eight. This makes it easier to check qualifications and impose conditions.

The Health Practitioner Regulation National Law Act 2009 which came into force on July 1 this year requires doctors to notify the Australian Medical Board any practitioner who puts patients at risk through significant departure from accepted professional standards. The new laws will not abolish  misconduct and  incompetence, but they will impose more rigorous processes around registration and maintenance of standards as well as make regulation more transparent and accountable.

In the event of another Patel, I would be the first to support criminal prosecution.

*Merrilyn Walton is Professor of Medical Education (Patient Safety) at the University of Sydney and a former NSW Health Care Complaints Commissioner

Peter Fray

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