Australian Doctor Australian Doctor 15th September 2017 | Page 13

News Review
Dr Jayant Patel arrives
in court in 2009 to face
manslaughter charges,
one of only a handful of
doctors to be charged
with the crime.
‘MEDICAL’
MANSLAUGHTER
So-called
medical
manslaughter
cases are rare
in Australia.
Are lawyers
here reluctant
to prosecute
doctors?
ANTONY SCHOLEFIELD
I
IN 2011, a baby named Tully Oli-
ver Kavanagh died from hypoxic
ischaemic encephalopathy in Ade-
laide.
Tully was a twin. His mother,
against her GP’s advice, had opted
for a planned homebirth where
the only medical supervision was
provided by former midwife and
homebirth campaigner Lisa Bar-
rett.
Baby Ruby, who would’ve
been Tully’s sister, was born first,
healthy.
Then the unborn Tully’s heart
rate dropped and his mother
noticed a huge blood clot.
‘BUT WE SEE NO PROSECUTION. WHY?
IS IT TOO HARD?’
— Associate Professor Ian Dobinson, law lecturer,
University of Technology Sydney
She was rushed to hospital in the
family car.
Partway there, the driver pulled
over, and Tully was born.
When he arrived unconscious at
the Women’s and Children’s Hos-
pital, clinicians managed to resus-
citate him, but diagnosed brain
damage that was, in the coroner’s
words, “incompatible with life”.
The case is significant because in
June this year after a long inves-
tigation, police decided to bring
manslaughter charges against Ms
Barrett, alleging that her care of
Tully’s mother was so negligent it
required criminal punishment.
www.australiandoctor.com.au
Medical manslaughter cases are
rare in Australia. Since the first
case 165 years ago, just four doc-
tors have been convicted of the
offence and two of those date back
more than 100 years.
Some legal commenters, such
as law lecturer Associate Profes-
sor Ian Dobinson, have argued
this rarity means prosecutors are
confronted with a grey area of
the law, leading to some cases not
being pursued through the courts.
“In hospitals, there’s a really
high rate of what’s determined to
be ‘avoidable death’,” says Profes-
sor Dobinson, from the University
of Technology Sydney.
“That suggests the treatment
somewhere, somehow has been
negligent.”
He points to the Bankstown-
Lidcombe Hospital, in Sydney,
where a baby died in 2016 after
nitrous oxide was administered
instead of oxygen.
“How do you make such a mis-
take, other than circumstances of
gross negligence?
“But we see no prosecution.
Why? Is it too hard?”
As Professor Dobinson wrote in
a 2009 paper for the University of
Queensland Law Journal, man-
slaughter charges are more com-
mon in the UK than in Australia.
“In the UK, it seems to suggest a
greater propensity of their Crown
Prosecution Service to prosecute
doctors, and there seems to be a
reasonable likelihood of convic-
tion,” he says.
“While the law there and the
law here are in principle the same,
there’s the difference — a willing-
ness to prosecute.”
The number of UK prosecutions
also spiked after the high-profile
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