R v Patel[2010] QSC 68

SUPREME COURT OF QUEENSLAND

1. PETER LYONS J:  The trial of the remaining counts on the present indictment relating to Dr Patel is scheduled to commence on Monday, 22 March 2010.  However, three applications have been made on behalf of Dr Patel for rulings on evidence proposed to be called in the Crown case.

Background

2. On 11 August 2009 I ruled on the question whether there should be separate trials in respect of matters the subject of the remaining counts. In the reasons for judgment relating to that ruling (the earlier reasons) I summarised the counts and significant features of the prosecution case relating to each count.  I attempted to identify the provisions of the Criminal Code 1899 (Qld) (Criminal Code) which are of primary significance for the trial.  I discussed a number of the authorities relevant to the admissibility of evidence of Dr Patel’s conduct on one occasion, in relation to an offence alleged to have been committed on another occasion.  I do not propose to repeat what I then said.  However, these reasons should be read with the earlier reasons.

3. The three applications under consideration seek rulings under s 590AA of the Criminal Code that certain evidence is inadmissible in the trial.  It is convenient to deal with these as a series of separate topics, in the order in which the submissions of the parties were presented.

Evidence re Mr Grave

4. In the earlier reasons, I attempted to state in broad outline the effect of the evidence on this topic, as it was identified to me. The accuracy of that summary, as reflecting the basis on which I was then asked to rule, has not been challenged. The following paragraphs produce the substance of that summary.

5. Dr Patel carried out an oesophagectomy on Mr Grave on 6 June 2003, shortly after he performed surgery on another patient to whom one of the counts refers, namely, Mr Phillips. Mr Grave’s post-operative history was very troubled. Dr Patel undertook a further five operations to rectify problems following the oesophagectomy on Mr Grave. He was then convinced to transfer Mr Grave to the Mater Hospital in Brisbane, where he was treated by Dr Cook, who was in charge of that hospital’s intensive care unit.  Dr Cook was concerned that oesophagectomies were being performed in a hospital with only a level 1 intensive care unit, and he wrote to the Bundaberg Base Hospital.  Some of the issues raised by Dr Cook were then discussed with Dr Patel.

6. Mr Grave was subsequently treated for a long time in the Mater Hospital intensive care unit, before being returned to the Bundaberg Base Hospital.  He died in January 2004.  However, none of the counts relate to Dr Patel’s treatment of Mr Grave, nor does the summary of evidence attribute his death to that treatment.  He died of cancer.

7. For the present hearing, I was provided with a document entitled “ADDENDUM TO INTERCONNECTION OF EVIDENCE” relating to Mr Grave (exhibit 3). This document sets out in a little more detail events leading up to the surgery which Dr Patel performed on Mr Grave. It also sets out in some more detail, events subsequent to the initial surgery. It gives a brief history of the events resulting in the transfer of Mr Grave to the Mater Hospital in Brisbane, notwithstanding Dr Patel’s opposition.  It then deals in summary form with the subsequent progress of his condition.  It also includes a brief summary of the evidence of Dr Glyn Jamieson, a professor of surgery, who was the head of the oesophagastric surgical unit at the Royal Adelaide Hospital.  It is his view that given the “combination of co-morbidities” affecting Mr Grave, it would be necessary to carry out a very careful assessment both of his cardiac function and his general level of fitness before subjecting him to an oesophagectomy.  Dr Jamieson says that the hospital records do not indicate that this assessment was undertaken.  Dr Jamieson expresses the view that, while it may have been appropriate to perform an oesophagectomy on Mr Grave, that should only happen in a hospital with an intensive care unit of a higher level than the unit at the Bundaberg Hospital, where Dr Patel performed the surgery.  He also expressed the view that, if an oesophagectomy is to be performed on a patient at a hospital with an intensive care unit of the standard found at the Bundaberg Hospital, it should only be done by a skilful surgeon who performs oesophagectomies regularly (6 to 10 times per year); and then only if the patient is otherwise fit, and if there is ready access to a higher level intensive care unit.  Those conditions were not satisfied when Dr Patel performed the oesophagectomy on Mr Grave, and Dr Patel was negligent to carry it out.

8. In the earlier reasons, I sought to identify the relevance of s 282 and s 288 of the Criminal Code to the trial.  Section 288 generally applies to a person undertaking to administer surgical or medical treatment to another person.  Its effect is to make it the duty of the person administering the treatment, “to have reasonable skill and to use reasonable care” in doing so.  It further provides that that person is held to have caused any consequences which result to the life or the health of a person to whom the treatment is administered, by reason of any “omission to observe or perform that duty”.  On that basis, I expressed the view that the section requires a person administering treatment both to have reasonable skill, and to use reasonable care in administering the treatment.  I considered that the term “skill” is apt to refer to a personal quality which a person may possess; and the requirement of skill differed from the requirement to use reasonable care in administering the treatment.  Moreover, I expressed the view that s 288 was relevant to proving that Dr Patel caused consequences to his patients which are referred to in the remaining counts.

9. I also noted that s 282 protected a person from criminal responsibility when that person performed a surgical operation upon another person for that person’s benefit, if the operation was performed in good faith and with reasonable care, and the performance of the operation was reasonable, having regard to the patient’s state at the time and to all the circumstances of the case. I considered this section to be relevant for the trial. The parties relied upon the same submissions in respect of s 282, as they had made in respect of s 288.  The earlier reasons dealt in some considerable detail with s 288, with little additional reference to s 282.

10. In the present proceeding, neither party sought to advance a different view about the role and proper construction of these sections, notwithstanding an invitation to make further submissions about them.

11. The first basis on which Mr R Martin SC (who appeared with Mr Meredith of Counsel for the Crown) sought to justify the reception of this evidence was that it was directly relevant to the offences charged. In support of that submission, he referred to R v Bateman,^[1] where the following appears:^[2]

“In explaining to juries the test which they should apply to determine whether the negligence, in the particular case, amounted or did not amount to a crime, the judges have used many epithets, such as ‘culpable’, ‘criminal’, ‘gross’, ‘wicked’, ‘clear’, ‘complete’.  But, whatever epithet be used, and whether an epithet be used or not, in order to establish criminal liability the facts must be such that, in the opinion of the jury the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment.”

12. It was also said:

“There may be recklessness in undertaking the treatment and recklessness in the conduct of it.  It is, no doubt, conceivable that a qualified man may be held liable for recklessly undertaking a case which he knew, or should have known, to be beyond his powers, or for making his patient the subject of reckless experiment.  Such cases are likely to be rare.  In the case of the quack, where the treatment has proved to be incompetent and to have caused the patient’s death, juries are not likely to hesitate in finding liability on the ground that the defendant undertook, and continued to treat, a case involving greatest risk to his patient, when he knew he was not competent to deal with it, or would have known if he had paid any proper regard to the life and safety of his patient.”

13. However, the judgment went on to draw attention to the fact that the latter proposition was relevant to civil liability; and that criminal liability was established only if the negligence or incompetence of the accused went beyond a mere matter of compensation, and showed such disregard for the life and safety of others as to amount to a crime against the State, and conduct deserving punishment, consistent with the passage cited earlier.

14. The effect of Mr Martin’s submission was that, as a result of his treatment of Mr Grave, and the consequences of it, Dr Patel knew or should have known that major surgery of the kind performed on Mr Grave was beyond his competence; and accordingly, it is directly probative of a matter which goes to establish his guilt.

15. He also submitted that the evidence was admissible under the principles stated in Pfennig v R^[3] and Phillips v R.^[4]  For convenience, I shall refer to evidence admissible under those principles as evidence of uncharged conduct. 

16. Mr Carmody SC (who appeared with Mr Woodford of counsel for Dr Patel) submitted that, since the offences were created by the Criminal Code, what evidence is relevant is to be determined by reference to its provisions; and that Bateman concerned a criminal offence regulated by the common law, and its test is accordingly irrelevant.  He also submitted the evidence was not admissible on the principles stated in Pfennig and Phillips.

17. That the test stated in Bateman may be appropriate for the prosecution of a negligence-related offence created by the Criminal Code has been recognised on a number of occasions in this State.^[5]

18. In Scarth, a person had been charged with manslaughter, resulting from negligent driving.  Section 289 of the Criminal Code imposes a duty on a person who has control of anything of such a nature that, in the absence of care or precaution in its use or management, the life, safety or health of another person might be endangered.  The duty is, “to use reasonable care and take reasonable precautions to avoid such danger”.  The majority in Scarth noted the distinction drawn in Bateman and other cases between negligence which gives rise to criminal liability, and negligence which gives rise merely to civil liability; and concluded that notwithstanding the expressions “reasonable care” and “reasonable precautions” found in s 289 of the Criminal Code, the same degree of negligence necessary to make a driver criminally liable for injury or death was required under the Code, as was necessary at common law.^[6] 

19. In Callaghan v R^[7] the High Court cited Scarth with apparent approval when dealing with an analogous provision of the Criminal Code of Western Australia; and concluded that under that Code, a greater degree of negligence is required than the minimum sufficient to make a person civilly liable.^[8]  In Akerele v R^[9] the Privy Council applied the test in Bateman to identify criminal negligence for the purpose of charges brought under the Nigerian Criminal Code.  The researches of Counsel for the Crown have shown that that Code included analogues of ss 282, 288 and 289, as well as of other provisions of the Queensland Criminal Code.

20. In the context of s 288, it would seem that the test stated in Bateman is appropriate to determine whether there has been “any omission to observe or perform” the duty imposed by that section.  An omission to do so does not occur, absent the satisfaction of the test formulated in that case.  There does not appear to be any reason to think the approach to this section should be different to the approach to ss 282 and 289.

21. On that basis, evidence which would go to show that Dr Patel knew certain forms of surgery were beyond his powers is directly relevant to proving a breach of his duty.

22. That conclusion does not determine the admissibility of the evidence. It is clear that the Crown intends to rely on the evidence on the basis that it shows something discreditable about Dr Patel, namely, that he performed surgery on Mr Grave in an incompetent fashion. It is on that basis that it will be alleged that he knew, or should have known, that complex surgery of this nature was beyond his competence. It may well be that, in such a case, the admissibility of this evidence is to be determined by reference to the principles stated in Pfennig and Phillips, notwithstanding that the evidence is adduced in relation to some matter other than propensity.^[10]  If that is so, it is by no means clear that the evidence is admissible.  It becomes necessary to consider whether, on the assumption that the jury accepts the evidence relating to the treatment of Mr Grave and weighing that evidence in the context of the prosecution case as a whole, there is no rational explanation of the evidence consistent with innocence.

23. The evidence relating to the treatment of Mr Grave demonstrates that there were complications consequent upon the oesophagectomy, and that there is expert opinion critical of Dr Patel’s conduct. However, on the submission at present under consideration, the evidence is proffered to demonstrate Dr Patel’s knowledge that complex surgery was beyond his competence. The difficulty is that the evidence, as it has been identified to me, does not go so far. Neither the fact that complications occurred subsequent to the surgery, nor the fact that other doctors formed the view that Dr Patel conducted the surgery incompetently, are sufficient to demonstrate the knowledge sought to be proven. Nor, from the outline of the evidence provided to me, is it easy to conclude that from this event, Dr Patel should have known that complex surgery was beyond his competence.

24. The evidence relating to the treatment of Dr Grave may take on some additional strength when looked at in the light of the Crown case as a whole. It may, perhaps, be regarded as one of a number of events, from which it might be concluded that Dr Patel should have known that complex surgery was beyond his competence. However, it is difficult to identify the point at which that conclusion might be reached. It may, for example, be the case that the conclusion could be reached by the time of some of the later surgery, but not necessarily from the surgery, the subject of some of the earlier counts.

25. I turn, then, to Mr Martin’s alternative submission. It is that this evidence goes to demonstrate Dr Patel’s lack of skill, relevant for reasons previously stated. On behalf of Dr Patel it is submitted that, in this context, the test is not satisfied.

26. In this context, there is no obvious distinction between this body of evidence, and the evidence relating to the surgery the subject of the remaining counts in the indictment. By parity of reasoning, the evidence relating to the treatment of Mr Grave is admissible by reference to the principles formulated in Pfennig and Phillips.

Evidence of Dr Allsop

27. Dr Allsop is, like Dr Patel, a general surgeon. He retired from clinical practice in 2002, but has continued some professional activity subsequently.

28. Dr Allsop reviewed a number of files of patients of Dr Patel. In respect of some of them, he recommended that no further action be taken. His evidence which is the subject of the present application relates to two of the files which he reviewed, those of Mr Phillips and Mr Kemps. Some of the charges against Dr Patel relate to these patients.

29. The nature of the evidence proposed to be called from Dr Allsop may be seen from the following (taken from a part of the transcript of the committal hearing):-

1. Co-morbidities affecting the health of Mr Phillips made him an unusually high operative risk;

2. The level of risk associated with operating on Mr Phillips had to be taken into account in deciding on the hospital where surgery might be conducted (I have previously referred to the fact that the Intensive Care Unit at the Bundaberg Base Hospital had a low ranking);

3. There was a difference between the CT report as reported by the radiologist, and Dr Patel’s opinion about the CT report, which needed to be resolved before any action was taken in relation to Mr Phillips.  It was unsatisfactory to undertake an operation on Mr Phillips without resolving the difference of opinion about the underlying pathology;

4. The treatment of Mr Phillips needed to be supervised by someone “with an absolute committed interest” (apparently meaning with current and extensive experience) in oesophageal surgery;

5. Notwithstanding that Dr Allsop had himself undertaken oesophagectomies in the past (but had ceased performing such surgery), if a patient with oesophageal cancer had been referred to him, he would have had other surgeons involved in the treatment of that patient;

6. The Intensive Care Unit at Bundaberg Base Hospital was insufficient for the performance of an oesophagectomy on a patient in good health, let alone someone in the condition of Mr Phillips;

7. An oesophagectomy on Mr Phillips should only have been performed by someone who was a “really competent oesophageal surgeon”;

8. Frequently an oesophagectomy is undertaken by two surgeons (eg, a thoracic surgeon and a gastrointestinal surgeon or a general surgeon).  Otherwise, it may be undertaken by “a committed oesophageal surgeon” with a surgical trainee.  Dr Allsop considered it unlikely that at the Bundaberg Base Hospital, there would be sufficiently competent surgical assistance for the performance of an oesophagectomy;

1. The surgery on Mr Phillips should not have been undertaken without first establishing the ability to monitor his central venous pressure;

10. The surgery notes revealed that the oesophageous was inadvertently torn in the course of surgery.  Dr Allsop could not comprehend how that could happen, “if the tissues were treated with the respect they deserve”.

30. This is not a complete summary of the opinions expressed by Dr Allsop in relation to the surgery on Mr Phillips. The evidence of Dr Allsop relating to the surgery on Mr Kemp was in many respects similar.

31. In substance, the objection taken on behalf of Dr Patel to the evidence of Dr Allsop is that the evidence went beyond his expertise. At one point in the written submissions in support of the objection, it was pointed out that Dr Patel had attended the Bundaberg Base Hospital on one occasion to interview some patients; that his knowledge of the Hospital itself was limited to having been told of the ranking of the Intensive Care Unit; and that he had never worked in Queensland.

32. That was coupled with a submission that there was no “scientific basis” for Dr Allsop’s opinion. The authority to which reference was made for the last statement^[11] is in fact authority for the proposition that an expert witness should be confined to giving opinions which are wholly or substantially based on the witness’s specialised knowledge of a field of expertise.

33. The objection to the qualifications of Dr Allsop to give evidence was supported by reference to the following matters:-

1. Dr Allsop had retired from surgical practice in 2002;

2. He was not working in any medical capacity at the time of the committal hearing;

3. He was not involved in any medical research at the time of the committal hearing, and had not been involved in such research since about 1976;

4. His experience in performing oesophagectomies was limited to 10 occasions, when he performed surgery with a thoracic surgeon in a period of three to four years from 1978;

5. He has never declared a special interest in oesophageal surgery;

6. He has not kept up with the research and advances in medicine concerning oesophageal surgery;

7. He has developed a practice in burns work and otherwise predominantly practised in abdominal surgery, breast cancer and thyroid disease.

34. Dr Allsop’s curriculum vitae demonstrates that, in addition to his formal qualifications, he has extensive experience in conducting surgery; as well as in lecturing and (although not recently), he has published works apparently related to his research. He has some limited, though not recent, experience of undertaking an oesophagectomy.

35. On a number of occasions, in respect to rather specific questions, Dr Allsop expressed the view that those questions were better answered by a “committed oesophageal surgeon”.

36. The objection is a general objection to the evidence of Dr Allsop. I was not asked, with respect to any specific question, to rule that it was beyond Dr Allsop’s expertise. In my view, the general objection to the whole of Dr Allsop’s evidence must fail. While, as Dr Allsop plainly recognised, some of the questions asked of him may be at or beyond the boundaries of his expertise, many of them are within it. For example, it seems to me to be clearly within his expertise to comment on the significance of surgery such as an oesophagectomy for a person in the condition of Mr Phillips and Mr Kemps. It is also within his expertise to comment upon what might be regarded as appropriate surgical procedures for any major surgery. It also seems to me within his competence to comment upon the appropriateness of carrying out major surgery such as an oesophagectomy at a hospital where the Intensive Care Unit facilities have particular limitations. The factual matters relied upon on behalf of Dr Patel, to which I have earlier referred, seem to me to go only to the weight of his evidence, but not to whether he is sufficiently qualified to give it.

37. While the objection articulated in the written submissions seems to be that the evidence relating to the appropriateness of the Hospital as a venue for such surgery was beyond the competence of Dr Allsop,^[12] there was a suggestion that Dr Allsop did not have sufficient knowledge of the standard of the Intensive Care Unit of the Bundaberg Base Hospital, to express some of the views which he expressed.  His evidence (in cross-examination) was that he asked for “a definition of the various levels of Intensive Care”, referring to a formal definition developed by Queensland Health; and he asked for the ranking of the Bundaberg Base Hospital Intensive Care Unit.  The issue does not seem to have been pursued further with Dr Allsop.  There is, however, other evidence that the Intensive Care Unit at the Bundaberg Base Hospital was a Level 1 Unit; and there was some evidence about what that meant.

38. Given that Dr Allsop has some knowledge about the standard of the Intensive Care Unit at Bundaberg, and given his expressed reluctance to deal with some topics which he recognised he was not qualified to express an opinion about, it seems to me that the better view of the evidence is that, to the extent that Dr Allsop expresses opinions based upon an assumed standard for the Intensive Care Unit at Bundaberg, he was in a position to express those opinions.

39. There are two potential issues raised by this objection. One is that there is no adequate basis in the evidence for the formation of the opinion expressed. The second is, in effect, that the opinion is irrational, the witness having insufficient information to come to a rational conclusion. The first matter is not a reason to reject the evidence, at least at this stage. The utility of the evidence will ultimately depend upon what is proven about the Intensive Care Unit at Bundaberg Base Hospital.  The second seems unlikely to be correct. 

Evidence of Dr Miach

40. A ruling is sought that the evidence of Dr Miach is inadmissible in so far as it deals with:

1. the suitability of oesophageal surgery for Mr Phillips;

2. Whether or not an oesophagectomy should be performed at Bundaberg;

3. Dr Patel’s practice of taking over the management of a patient when an opinion was sought from him about the patient.

41. Dr Miach is a physician with particular expertise in nephrology (a nephrologist is also referred to as a kidney or renal specialist). He was the Director of Medicine at the Bundaberg Base Hospital, when Dr Patel worked at that hospital; and he retained that position at the time of the committal.  It is convenient to deal at the one time to deal with the first two categories of evidence in respect of which the ruling is sought.

42. Mr Phillips, to whose treatment one of the counts relates, was a patient of Dr Miach. Dr Miach’s evidence was that Mr Phillips had poor health, prior to his operation, including chronic renal failure. He underwent dialysis regularly. Early in 2003 it was suspected the Mr Phillips had oesophageal cancer. Dr Miach thinks it likely that after he saw Mr Phillips, Mr Phillips was referred to Dr Patel for an opinion. He regarded as “self-evident” that in a case like that of Mr Phillips, a surgeon would have to discuss the patient’s condition with the physician, before taking any action. That did not occur. Dr Patel carried out an oesophagectomy on 19 May 2003. The surgery went badly, and as noted in the earlier reasons, Mr Phillips died within two days.

43. Dr Miach’s evidence is that, if he had been consulted, he would have advised against surgery. The effect of his evidence is that the cancer did not need urgent treatment, or at least treatment so urgently as to preclude consultation with a number of relevant specialists. He gave evidence of significant difficulties that Mr Phillips had had previously with surgery which was less invasive than the oesophagectomy.

44. Mr Kemps was another patient of Dr Miach. He too had a number of illnesses. In December 2004, a mass was detected in the lower part of his oesophagus. It was decided to transfer him to Royal Brisbane Hospital.  However, the surgeons at that Hospital required an opinion from the local surgeon, before the transfer.  Mr Kemps was then referred to Dr Patel.  Dr Patel stated that Mr Kemps could be discharged on 14 December 2004 and arranged for his re-admission and on 20 December 2004, Dr Patel carried out an oesophagostrectomy with a left thoracotamy.  There was subsequent complications including substantial internal bleeding.  He died the following day.  Dr Miach gave evidence that if asked, he would have recommended against the performance of surgery on Mr Kemps.  I have not been asked to make a ruling about that evidence.  However, in the course of giving that evidence, Dr Miach was asked whether, had he not opposed an oesophagectomy being carried out on Mr Kemps, he had a view about whether it should take place in Bundaberg.  He answered that question by reference to both patients.  He expressed the view that he did not think an oesophagectomy should be performed in Bundaberg.  The tenor of his answer suggests that that is particularly so in the case of these two patients.  This evidence was very brief.  It was not explored in cross-examination at the committal.

45. The objection made on behalf of Dr Patel to the first and second categories of evidence is that Dr Miach is not competent to give the evidence.

46. It is apparent from the evidence of Dr Miach that the decision to carry out major surgery on a patient whose condition was as serious as that of Mr Phillips is usually made in consultation between the surgeon, the nephrologist and potentially other relevant specialists. Dr Miach’s evidence at the committal reveals an appreciation of the impact of major surgery on such a patient. These factors, his qualifications and experience, and the absence of any material to suggest otherwise, would lead me to conclude that it is within his competence to comment on the suitability of the oesophageal surgery for Mr Phillips.

47. Dr Miach’s qualifications and experience provide some basis for concluding that he could comment on the question whether an oesophagectomy should be performed at Bundaberg, though obviously without the same authority as a surgeon, and particularly a surgeon specialising in such surgery who is familiar with the Intensive Care Unit at that Hospital. It would seem that he was familiar with the Intensive Care Unit at the Bundaberg Base Hospital, and at times was called to assist with emergencies.  I note that in his evidence relating to Mr Phillips, he refers to the fact that on occasion when he was treated in Bundaberg, he had to be managed in the Intensive Care Unit; and when difficulties emerged after surgery on Mr Phillips on 19 May 2003, Dr Miach was called to the Intensive Care Unit to assist with his treatment.

48. In my view, both by reason of his general qualifications and experience, and by reason of his specific familiarity with Bundaberg Base Hospital, as well as his likely knowledge of the needs of patients who are treated in an Intensive Care Unit, Dr Miach is qualified to express an opinion about whether it is appropriate to perform an oesophagectomy at Bundaberg Base Hospital.

49. I therefore propose to rule against the objection to the first two classes of evidence now under consideration.

50. The third category of evidence raised in this context is some evidence from Dr Miach that Dr Patel would take over the treatment of patients who were referred to him for an opinion. The evidence is generalised evidence of a pattern of conduct. While at one point, reference is made to a “complex patient”, which in context I take to be a patient whose treatment requires the coordination of the work of doctors with a number of different specialties, taken as a whole, the evidence is more generalised. At one point Dr Miach referred to an “examination of other patient records” as a basis for his comments. Dr Miach described Dr Patel’s conduct as a failure to follow “protocol, manners, courtesy, diplomacy”.

51. On behalf of the Crown, it was submitted that this evidence is particularly relevant in the case of Mr Kemps. Another doctor at the Bundaberg Base Hospital, Dr Smallberger, wanted to transfer him to Brisbane, which required obtaining an opinion of the surgical department.  As previously noted, it was at this point that Dr Patel took over his treatment, resulting in his carrying out surgery on Mr Kemps.

52. It is difficult to see the relevance of generalised evidence that when a patient was referred to Dr Patel, he took control of the treatment of a patient. Such evidence may include a reference to patients where no significant input from doctors with other specialties was required; and cases where the patient’s condition may have made it particularly appropriate for a surgeon to do so. On the basis of what I understand to be the issues at the trial, generalised evidence that it was the practice of Dr Patel always to take control of the treatment of patients referred to him, or patients referred to him for an opinion, is of no probative value. I propose to rule that it is inadmissible.

Providing a ventilator for Mr Kemps

53. It will be recalled that Dr Smallberger wished to have Mr Kemps transferred to the Royal Brisbane Hospital for further management, and for this purpose, Mr Kemps was referred to Dr Patel for an opinion.  That resulted in Dr Patel seeing Mr Kemps on 14 December 2004.  Dr Patel then stated that Mr Kemps could be discharged on that day; but he arranged for him to be re-admitted on 19 December 2004, for surgery the following day.  Dr Patel took steps to secure a ventilator for Mr Kemps.  It would appear that the surgery could not proceed unless a ventilator was available.  No ventilator was immediately available on 19 December 2004; but one patient then on a ventilator was not expected to survive.  There is evidence from one of the nurses in the Intensive Care Unit that when he arrived at the Unit in the evening of 19 December 2004, he received instructions that had been left by Dr Patel to turn off the ventilator for this patient at about 10 pm that night.  Such instructions were usually not given by a surgeon, but by the anaesthetist in charge of the Intensive Care Unit.  Protocols relating to the taking of this action had not been followed.  A resident working at the Unit that night then consulted the anaesthetist, who was not prepared to have the ventilator switched off.

54. The following day, Dr Patel demanded to know why the ventilator had not been turned off. The nurse explained that protocols had not been followed. Dr Patel then said that he had to do the operation that day, as he was due to go on holidays in a few days time.

55. The submissions made on behalf of the Crown make it clear that the condition of the patient on the ventilator was such that disconnection of the ventilator would be appropriate at some time. The point of the evidence seems to be that Dr Patel was prepared to instruct that such a significant action be taken in advance of the time that would ordinarily occur, and prior to carrying out the protocols relating to the taking of such an action; and to do so at a time when the doctor ordinarily charged with the duty of making of the decision was not prepared to authorise it. Dr Patel’s purpose was to enable him to carry out the surgery before he went on holidays. Additional context is provided by the fact that other medical practitioners considered the surgery inappropriate, and that Mr Kemps should have been treated at a larger hospital rather than at Bundaberg. The evidence in relation to Dr Patel’s treatment of Mr Kemps is also said to include evidence from doctors that he failed to undertake the “necessary staging”, before commencing surgery. Orally, it was said that this was another case of “inadequate surgical workup”. Neither expression was further explained, but they may refer to the same thing.

56. It is submitted on behalf of Dr Patel that the evidence is irrelevant. In my view, that is not correct. Dr Patel’s actions in relation to securing the provision of a ventilator are quite proximate in time to his surgery on Mr Kemps. They provide some evidence of a motivation on Dr Patel’s part, unrelated to a concern about the most appropriate treatment for either patient. They also provide some context for the evidence relating to his failure to undertake proper preparation for the surgery.

57. It is further submitted that it should be excluded because its prejudicial effect outweighs its probative value. Reliance was placed on R v Hasler; ex parte Attorney-General.^[13]

58. In Hasler, the evidence of the commission of the offence charged was inextricably intertwined with evidence of the commission of another offence.  In that context, it was held that relevant evidence should be admitted, unless it is of relatively slight probative value, and the prejudicial effect of its admission would be substantial.  That proposition is an instance of the exercise of the discretion to exclude otherwise admissible evidence, on the ground that it would be unfair to the accused.

59. In my view, on the basis on which the Crown has put this evidence forward, it would not be unfair to admit this evidence. It appears to me to be of some probative value; and its “prejudicial” effect is in what it demonstrates about Dr Patel’s motivation to perform the surgery on Mr Kemp at the time he performed it. While it also reflects on Dr Patel’s attitude to proper procedures, it does not seem to me that that can sensibly be excluded.

Survey of catheter procedures

60. When Dr Patel first came to Bundaberg Base Hospital, Dr Miach spoke to him to find out what classes of surgery he performed.  Dr Patel indicated that he carried out a broad range of surgery.  Subsequently, it was Dr Miach’s practice to refer patients to Dr Patel for a surgical procedure associated with what is identified as a Tenckhoff catheter in the peritoneum.  The insertion of such a catheter is described by Dr Miach as a minor procedure, though it must be placed in a specific location, with the result that the incision has to be precise.  While some physicians perform this procedure, it was Dr Miach’s practice to refer patients to a surgeon.

61. When Dr Miach became concerned about Dr Patel’s surgery, he arranged for two senior nurses to carry out what was referred to as an “audit” of these procedures, done by Dr Patel. This was, apparently, about the end of 2003. It involved a review of such procedures carried out by Dr Patel. Six cases were identified, between August and December 2003. The result of the review was that in 100% of the cases, there were complications. Dr Miach says that he invited Dr Patel to read the document which resulted from this investigation, but he was not interested. Subsequently, Dr Miach arranged for someone else to carry out these procedures for his patients.

62. Subsequently, Dr Miach referred the results to Dr Keating, the Director of Medical Services. He raised this and other matters at a clinical forum meeting. He informed medical and hospital staff at the Hospital that Dr Patel was not to operate on any of Dr Miach’s patients. Some time later, arrangements were made for these procedures to be carried out elsewhere. No further difficulties were encountered.

63. On behalf of Dr Patel it is submitted that this evidence is not probative of any fact in issue; or alternatively that its probative value is substantially outweighed by its prejudicial effect so that on a discretionary basis it should be excluded from evidence.

64. For the Crown it is submitted that this evidence is compelling evidence of the failure of Dr Patel to be able to perform simple surgery in a reliable fashion. It is said to offer “a window of genuine insight into (Dr Patel’s) competence”. It was also submitted that this “should have given him pause for thought about his competence”, perhaps a reference to the earlier submission that he knew, or should have known, that his competence was limited; yet undertook major surgery.

65. Unlike the evidence of the surgery which is the subject of the counts in the indictment, no evidence has been referred to which would show that Dr Patel performed this procedure on any six of the occasions referred to, in a way that demonstrated lack of skill or an absence of care. In those circumstances, the adverse results may be otherwise explicable. On the present state of the evidence, I would not admit it.

The evidence that Mr Grave suffered from subsequent metastatic liver disease

66. It will be recalled no charge relates to the treatment of Mr Grave. I have earlier concluded that evidence relating to Dr Patel’s treatment of him is admissible. I have also recorded that he died sometime later for reasons unrelated to the actions of Dr Patel.

67. The Crown proposes to lead evidence which deals in some detail with Mr Grave’s condition subsequent to the surgery carried out by Dr Patel. It should first be noted that CT scans were conducted on Mr Grave, on 26 May 2003 and on 15 June 2003, that is, before and after the surgery performed by Dr Patel. Neither scan revealed evidence of metastases to the liver. In October 2003, the presence of metastatic liver disease was identified. This is said to be the cause of Mr Grave’s death in January 2004.

68. On behalf of Dr Patel it is submitted that this evidence is irrelevant. For the Crown, it is submitted that it is admissible “as part of the general history of the case”. It was also said to be relevant because it demonstrates that the surgery which Dr Patel performed was of limited value; and that the risk that other factors relating to the health of Mr Grave would in fact shorten his life, came to pass.

69. The surgery performed on Mr Grave is not the subject of any of the charges. It is relevant to the competence of Dr Patel. Its relevance to that issue depends upon whether the judgments made by Dr Patel at the time he performed surgery on Mr Grave were competent. That in turn, depends upon the information available to Dr Patel at that time. In my view, what subsequently happened to Mr Grave is irrelevant.

70. I would uphold this objection.

71. No separate submission was made that evidence which simply proves that Mr Grave died subsequently, and that the cause of his death was unrelated to the surgery carried out by Dr Patel, was advanced. My ruling does not extend to such evidence.

Conclusion

72. I have reached the following conclusions:-

1. The evidence relating to Dr Patel’s treatment of Mr Grave, taken as a whole, should not be excluded;

2. The evidence of Dr Allsop should not be excluded on the ground that he is not properly qualified to give the evidence, whether by reason of his professional qualifications, or his knowledge of the Intensive Care Unit at the Bundaberg Base Hospital;

3. The evidence of Dr Miach relating to the treatment of Mr Phillips, and the appropriateness of performing an oesophagectomy at Bundaberg Base Hospital, should not be excluded on the ground that Dr Miach is not qualified to give expert evidence on these matters;

4. Evidence of a generalised nature that when a patient was referred to Dr Patel, or when a patient was referred to Dr Patel for an opinion, Dr Patel would take over the conduct of the treatment of that patient is irrelevant, and should be excluded;

5. The evidence of Dr Patel’s conduct relating to the securing of a ventilator for Mr Kemps should not be excluded on the ground that it is irrelevant, nor on a discretionary basis on the ground that it is prejudicial to Dr Patel;

6. Evidence relating to a survey of the outcomes of the performance by Dr Patel of Tenckhoff catheter procedures, as identified in the material provided to me, is irrelevant, and should be excluded;

7. Detailed evidence of the identification and progress of Mr Grave’s metastatic liver disease some months after the surgery performed by Dr Patel in June 2003 is irrelevant and should be excluded;

73. I propose to invite the parties to make submissions as to the form these rulings should take.