Australia: Updates from the courts in relation to medical manslaughter and gross negligence

Last Updated: 18 May 2018
Article by Kerri Thomas and Mark Doepel

The circumstances surrounding medical manslaughter

After being found guilty of gross negligence manslaughter while treating six-year-old Jack Adcock, the English High Court deregistered junior medical practitioner, Dr Bawa-Garba, in General Medical Council v Bawa-Garba [2018] EWHC 76, in a situation involving human error, IT system failure and a lack of resources.

The case has brought nervous concern from medical practitioners in England and Australia that medical standards will be set, and how breaches of standards will be determined.

Australia has largely followed the English legal position in adopting the test for gross negligence manslaughter. Will Australian courts follow the decision in Bawa-Garba?

What happened in England?

Dr Bawa-Garba was a trainee paediatric registrar who returned from 12 months' maternity leave to an understaffed hospital with an unreliable IT system. She failed to diagnose and treat a six-year-old boy suffering from downs syndrome who died of sepsis the afternoon of his admission.

In the regulatory proceedings, the Medical Tribunal found Dr Bawa-Garba professionally culpable in the circumstances and ordered suspension.

The General Medical Council (the Plaintiff) appealed to the High Court and argued that a suspended sentence, in consideration of the Criminal Court's findings, "was not sufficient to protect the public".

The High Court overturned the Tribunal's decision because Dr Bawa-Garba's failures were "truly exceptionally bad" and the jury convicted her of gross negligence manslaughter. This is despite Dr Bawa-Garba having been in circumstances where there were uncontrollable systematic failures, a lack of resources and mitigation.

While medical practitioners have been found guilty of manslaughter by way of gross negligence, regulatory proceedings have not yet been subject to a court (or jury's) finding in criminal proceedings.

How this is different in Australia?

The following table exemplifies the similarities between England and Australia's legal positions on medical manslaughter.

England (as decided in R v Adomako [1995] 1 AC 171, 182) Australia (as decided in R v Taktak (1988) 14 NSWLR 226, 250; The Queen v Lavender [2005] HCA 37)
The defendant owed the victim a duty of care The defendant owed the victim a duty of care
The defendant breached that duty of care The defendant breached that duty of care
The breach caused (or significantly contributed to) the victim's death The breach was a proximate cause of the victim's death
The breach was grossly negligent in all the circumstances in which the defendant was placed. Grossly negligent constitutes conduct that departs from the proper standard of care involving a risk of death The breach was conscious and voluntary, without intention of causing death, but involved such a great falling short of the standard of care that a reasonable person would have exercised and involved such a high risk of death that it warranted criminal punishment

Despite the similarities, Australia has seen few successful convictions of medical practitioners for manslaughter compared to England. The reason seems to be a reluctance to prosecute and convict medical practitioners, together with concern about the impact on the medical profession.

Bawa-Garba is unique in the scope of the particular failures and circumstances. But any medical practitioner could find themselves in Dr Bawa-Garba's position.

Are we likely to see Australia moving toward the Bawa-Garba world? We think it is unlikely. The position in Rogers v Whitaker would need to be abandoned (which is, again, unlikely) to see this happen.

Accounting for surrounding circumstances

In Australia, surrounding circumstances will be taken into consideration (with quite some weight) in regulatory proceedings. This is unlikely to change as a result of Bawa-Garba. For example, in Dekker v Medical Board of Australia [2014] WASCA 216, Dr Dekker failed to stop and assist at a car accident due to the darkness, her inability to see the vehicle, her state of shock, a lack of first aid equipment and no mobile phone. In the 2013 regulatory proceeding in Western Australia, the Medical Board looked at circumstances impinging on Dr Dekker's duty as a medical practitioner where she was found guilty of improper professional conduct. On appeal, the Board's case was dismissed for want of evidence.

We would like to acknowledge the contribution of Mark Doepel and Dylan Moller to this article.

Spinal fusion surgery—justification questioned

Spinal fusion procedures are reported to cost health funds approximately $298 million a year. This is despite evidence suggesting they are no more effective than the conservative methods in treating lower back pain.

As part of the Choosing Wisely Australia initiative, the Faculty of Pain Medicine at the Australian and New Zealand College of Anaesthetists has warned medical practitioners not to refer axial lower lumbar back pain for spinal fusion surgery. Although some positive studies have been reported, pooled data from multiple randomised trials has not provided support for surgery.

In 2016, Dr Richard Williams, orthopaedic surgeon and spokesperson for the Royal Australasian College of Surgeons, called for tighter guidelines, including a requirement that patients wait for 12 months before spinal fusion surgery is performed. During this time, patients should undergo aggressive rehabilitation in an attempt to lose weight and reduce their back pain.

Dr Williams also acknowledged that patients often hold high expectations of the results of spinal fusion surgery. In many cases, there were additional entitlements from workers' compensation or other third party claims.

Between 1997 and 2016, lumbar spinal fusion surgery performed privately in Australia increased by 175%. This is despite the fact that some systematic reviews could not draw firm conclusions about the outcomes. Opinions differ among spinal surgeons about whether surgery improves a patient's condition. The courts have also acknowledged that spinal fusion surgery for axial pain is controversial.

The current trend suggests spinal fusion surgeries are likely to become the subject of increased litigation over the next few years as patients and surgeons become increasingly disillusioned with the outcomes. Further research is required into the effectiveness of this surgery, but until then it is appropriate to approach cases involving spinal fusion surgery with caution.

We would like to acknowledge the contribution of Laura Pilsworth to this article.

ACT Supreme Court gives loss of chance a chance

The recent decision of KS and XT v Calvary Health Care ACT trading as Calvary Hospital and Dr Andrew Foote [2018] ACTSC 84 has seen the parents of a still-born child at the Calvary Hospital in Canberra awarded $919,819.15. The Australian Capital Territory Supreme Court found that the baby's death had been caused by the negligence of the Calvary Hospital and the attending obstetrician, Dr Andrew Foote. The case is noteworthy because of the manner in which the Court approached the assessment of the mother's economic loss damages.

In this case, a child conceived by in vitro fertilisation was a week overdue so the mother was admitted to the Calvary Hospital under the care of Dr Foote to be induced into labour. The mother was attached to a foetal heart rate monitor, and by 5 pm in the afternoon, abnormalities were observed in the baby's heart rate. The midwife failed to appreciate the severity of the change and did not contact Dr Foote until 6 pm. The mother was transferred to the operating theatre at 6.35 pm for a caesarean section, but the child was still-born at 7 pm. As a result of the still-birth, the mother suffered post-traumatic stress disorder and major depression, which had allegedly impacted all facets of her life. The father also alleged suffering from depression of a mild to moderate severity.

The Hospital and Dr Foote initially denied liability. Through the course of the hearing, the Hospital conceded liability, while Dr Foote made limited admissions of breach of duty without conceding liability for the baby's death.

The ACT Supreme Court found that a competent midwife would have recognised the signs of foetal distress by 5 pm, then immediately contacted Dr Foote and requested his urgent attendance. If that had happened, it is probable that the child would have been born alive and the parents would not have sustained their subsequent injuries. The midwife's actions constituted a breach of the duty of care owed by the Hospital to the parents.

Justice Burns found that Dr Foote failed to warn the mother of the increased risks associated with the baby being over term, which were compounded by her age and the fact the baby was conceived using IVF. Dr Foote was aware of the difficulty experienced by the mother in becoming pregnant and that she had previously suffered a miscarriage. Dr Foote breached his duty of care as he failed to carry out an urgent caesarean section at the earliest possible time after he became aware of the baby's foetal distress. Conducting the procedure at approximately 7 pm constituted a very serious departure from the duty he owed to the mother.

The Court held that the Hospital and Dr Foote were negligent and breached their duty of care to the parents. Dr Foote was found 70% liable. As a result of these breaches of duty, the parents were awarded $919,819.15 collectively in damages. The mother was awarded $699,518.15 in damages, $230,000 of which was general damages. The mother was also awarded $290,321.30 for future economic loss.

The mother was admitted to practice medicine in Venezuela and was in the process of sitting the English proficiency test to be admitted as a doctor in Australia. Although she had failed the relevant tests in Australia three times, the Court was of the opinion that the mother had excellent prospects of passing the test and would have then successfully passed the medical knowledge tests necessary to practice as a general practitioner. In short, the Defendants' negligence had denied her that opportunity. The father was awarded $220,373 in damages ($200,000 being for general damages).


As more first time parents are reliant on IVF and the average age of the parents is rising, this case not only reiterates the importance of providing appropriate warnings and information to patients, it reinforces the importance of explaining the associated risks with these patients and properly recording these discussions.

While the issues examined in this case are undeniably tragic, they are not unique. The manner in which the Court approached the assessment of the mother's economic loss damages, however, is unusual. The Court did not rely on her past earnings history (i.e. those evident through the taxation records) rather her damages were analogous to a loss of chance case. This is evidence that the Court will take novel ways to approach damages if the case warrants it and a persuasive argument can be used to justify making an award that deviates from the usual course.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Kerri Thomas
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