Update: This decision was reversed on appeal: Dekker v Medical Board of Australia  WASCA 216. The Court of Appeal did not find that there was no duty to assist. Rather, they found that there was insufficient evidence before the disciplinary tribunal for it to find the existence and acceptance in the profession of such a duty, because the existence of such a duty was never put to the doctor by the tribunal and because the tribunal failed to take into account on the question of liability (as opposed to penalty) all the surrounding circumstances, including that the doctor was in a state of shock.
Original post: Eleven and a half years after a 2002 car accident south of Port Headland a radiologist has been found guilty of the Westralians’ version of professional misconduct (‘improper professional conduct’) but not of conduct which peers would regard as disgraceful or dishonourable, for failing to render medical assistance. The decision is Medical Board of Australia v Dekker  WASAT 182. It makes a bold assertion of general application without identifying or discussing any authority about the factual scenario in question, which must surely occur regularly all over the world and — one would have thought — be much pondered:
’39 It is improper conduct in a professional respect for a medical practitioner who is aware that a motor vehicle accident has or may have occurred in their vicinity and that anyone involved has or may have suffered injury not to make an assessment of the situation, including the nature of any injuries and needs of persons involved, and render assistance, by way of first aid, when the practitioner is physically able to do so, notwithstanding that the practitioner immediately reports the matter to police or other emergency services. It matters not that there is no existing professional relationship between a medical practitioner and the persons involved in the accident. Because saving human life and healing sick and injured people is a core purpose and ethic of the medical profession, and because members of the profession have the knowledge and skills to do so, the failure by a medical practitioner to make an assessment and render assistance when he or she is aware that a motor vehicle accident has or may have occurred in their vicinity and that people have or may have been injured, when the practitioner is physically able to do so, would, notwithstanding that the practitioner reports the matter immediately to police or other emergency services, reasonably be regarded as improper by medical practitioners of good repute and competency, and there is a sufficiently close link or nexus with the profession of medicine.’
Civil liability in tort has been imposed on a doctor who refused to attend upon an emergency involving a non-patient: Lowns v Woods  Aust Torts Reports 81-376 (NSWCA). But in that case the then proximity-based test for establishment of a duty of care was satisfied by a number of factors which included that:
- a request was made for assistance in respect of what the doctor understood to be a medical emergency which he was willing to provide (but only on the condition that the patient be brought by ambulance to his practice);
- he was specifically told that ‘We need a doctor. We have already got an ambulance’;
- he was able to do so: he was at work, available, competent at administering the requisite treatment, and could have done so promptly being only 300 m away from the patient;
- to attend involved no threat to his person;
- he was not incapacitated so as to make giving treatment more difficult: he was not drunk, or ill, or tired; and
- there were statutory provisions which made it misconduct to fail to render assistance to a person in urgent need of medical attention without reasonable excuse.
See Kylie Day’s ‘Medical Negligence – the Duty to Attend Emergencies and the Standard of Care: Lowns v Woods” (1996) 18(3) Sydney Law Review 386.
The tortious duty was squarely founded on the fact of a request in a professional context for treatment of the kind in which the doctor practised. Public policy was expressly acknowledged as relevant to the determination of the tortious liability. Since the existence of a professional obligation was a matter that told in favour of the development of a new category of duty of care, civil lawyers ought not be entirely blase about the latest apparent development of the disciplinary law courtesy of the Westralians.
The chronology goes like this. The accident occurred on 27 April 2002. It was dark. Dr Dekker was in her ute coming back from the Roebourne tip with her neighbour, Roy Abell. After the accident, there was much controversy about the facts. At the criminal trial, Abell would give evidence for the prosecution. By the time of the disciplinary hearing, however, the Medical Board accepted the doctor’s version of the accident, and the disciplinary prosecution proceeded with the benefit of an unduly skeletal set of agreed facts. There were disputed allegations too.
What follows is a fair summary of the facts as they appear to have been determined by the disciplinary tribunal, from the perspective of the doctor. (What injury was in fact suffered by the occupants of the other car, and the characteristics of its occupants and of the vehicle itself are distractions, since they were unknown to the doctor at the time she made the decision to drive off and seek assistance rather than see if she could provide it herself.)
The doctor was stationary at a t-intersection, in a side road which ended at the highway. She saw a vehicle coming along the highway from her right. For some reason, everyone seems to have agreed that it was travelling at excessive speed, though it was agreed to be 50 – 60 kph. It was on the wrong side of the road and was coming straight for her. She drove forward into the top of the T to avoid collision. The other vehicle passed behind her ute. She heard a noise which she suspected was a crash and suspected that the vehicle had ended up in a ditch. She did not get out of her ute to investigate, and neither did Abell. He suggested they go straight to the police, which they did, advising of the likelihood of an accident with the intention that they arrange and provide assistance.
She supposed that the passengers of the vehicle had suffered badly. She had no torch, no mobile phone, no first aid kit, no medical equipment. The police station was nearby. How close is for some reason not stated in the reasons. Nor is it stated whether Roebourne had an ambulance, but it appears to have one now. What use this particular radiologist would have been in dealing with victims of road trauma was not the subject of discussion either.
Precisely what the Tribunal determined the doctor’s state of mind to be immediately after the near miss is not very clear from its reasons. It is not clear that her evidence that she was physically shaking, screaming, and unable to think coherently was challenged or not accepted. But the Tribunal did find that her passenger had said to her that he thought that the other driver had rolled the car and and did find that her instinct as a doctor was that if that was so, there would be bad injuries in the other car. Those findings were based on statements which the doctor made to the police shortly after the near miss. Those statements also included the proposition that ‘I know it was a waste of time so I go to police so they can get help’. Whether the Tribunal accepted the truth of that statement is not revealed by its reasons. If it did, what ‘it was a waste of time’ was understood to mean is also unclear, especially since the doctor’s English was self-evidently quixotic, if not poor. As we will see, the Tribunal did seem to accept, at least, that the practitioner was ‘in a state of shock’, ‘petrified’ and ‘freaked out’.
The doctor was tried for and convicted on a not guilty plea of dangerous driving causing death in a trial at the Karratha District Court in December 2005. She was fined $10,000 and was disqualified from driving for 2 years. She wished very much to appeal and went to lawyer after lawyer until she found the one who would go on to win the appeal for her on an application made well out of time. This decision was set aside in February 2009: Dekker v WA  WASCA 72 on the basis that the Crown had proceeded on a case which was unsupported by the objective evidence, which suggested that the other vehicle was out of control before the doctor took off from the T intersection.
Meanwhile, for reasons which I do not know, the doctor was the subject of another criminal prosecution, on a charge of dangerous driving causing bodily harm, in the WA Magistrates’ Court, in February 2008. What the result was, I do not know.
On 6 August 2009, it appears that the doctor was disciplined by the State Administrative Tribunal for the same instance of failing to stop and render assistance. In that proceeding, it appears that the doctor agreed that she should have stopped and rendered assistance. She was reprimanded and ordered to pay the costs of the Medical Board of WA in the sum of $35,000. That decision features in none of the commentary about this decision nor in the decision itself. It seems likely that this decision must have been set aside on appeal.
Then in October last year, the disciplinary prosecution with a 2006 matter number was heard in the State Administrative Tribunal of Western Australia by a tribunal of three doctors presided over by a District Court Judge, his Honour David Perry. The tribunal gave its reasons in November. As to the doctor’s state of mind, it said this:
’43 The fact that the practitioner was “in a state of shock”, “petrified” and “freaked out” after the “near miss” incident is hardly surprising in a case where a person is involved in an accident or in a nearmiss situation. However, the practitioner was not simply ‘a shocked and distraught woman’, to quote [her counsel]’s submission, but rather a member of the medical profession who had gone through a no doubt frightening nearmiss experience, but was thankfully physically unharmed, and was aware that another vehicle had or may have crashed in her vicinity. Because she is a member of the medical profession, and therefore a person with medical knowledge and skills to save life and to heal the sick and injured in the community, her professional duty required that she overcome or at least put aside the shock and provide assistance to the occupant or occupants of the second vehicle. Although the practitioner’s ‘shock’ may be relevant in relation to penalty, it does not have the consequence that her conduct would reasonably be regarded as anything other than improper (or, had she not immediately reported the matter to police or other emergency services, disgraceful or dishonourable) by professional colleagues of good repute and competency.’
Now there are a lot of radiologists who, if they did not have some damn good pain killers to hand, I would prefer to go fetch the cops and the ambos rather than poking around in a ditch in the dark, especially if they could not think, and were shaking with freaked-outedness. It may be that this radiologist had the skills to justify the rather broadly stated conclusion that she had ‘skills to save life and to heal the sick and injured’ relevantly to the various scenarios which might have been envisaged by the doctor, but the factual foundation for this assertion is not clearly articulated in the reasons. So the reader is left puzzled by the absence of analysis of why it would have been better for a freaked out woman who was presumably good at interpreting x-rays to investigate, in the dark, an accident which she thought may have happened, in circumstances where if she did so she would be delaying calling an ambulance, rather than driving the short distance to the police station to get help. The Tribunal dealt with those issues in this way:
’40 … Although it was dark and the practitioner did not have a torch with her, there is no reason why she could not have used the headlights of her vehicle to illuminate the scene. Although the practitioner did not have any medical equipment or a first aid kit with her, her knowledge and skills as a medical practitioner would have enabled her to make an assessment of the condition of the occupant or occupants of the second vehicle and render first aid to them if necessary.
41 Furthermore, the fact that she did not own or have a mobile telephone with her at the time and the fact that the police station to which she drove to report the incident was only a short distance away did not discharge her professional duty to make an assessment and render assistance at the scene. Notwithstanding these circumstances, the practitioner’s conduct would reasonably be regarded as improper by professional colleagues of good repute and competency. In order to save life, first aid may need to be rendered immediately. Any delay in providing first aid after a traumatic injury, even a delay of a short period, could result in death. Furthermore, even if it were necessary to leave the scene of the accident to call for assistance from emergency services, it was necessary for the practitioner to determine the number of persons who were injured, to assess their injuries and needs to the greatest extent possible in the circumstances, and to see if they were trapped, in order for appropriate emergency services to be dispatched.
42 … Whether the passenger actively encouraged her or merely suggested that they go to the police station, it could not possibly have the effect that the practitioner’s conduct would not reasonably be regarded as improper by professional colleagues of good repute and competency. Given that saving of human life and healing sickness and injury is at the core of the profession of medicine, a medical practitioner must adhere to their duty irrespective of what others may suggest or encourage.
44 Finally, as noted earlier, the practitioner did not give evidence that ‘violence towards women was a common occurrence and this was known to [her]’, as suggested in Mr Morrissey’s submission. The practitioner did refer to alcoholism, drug use and violent behaviour as a common occurrence in the locality. However, she conceded in crossexamination that these were not matters about which she was thinking at the time when she made the decision to leave the scene after the ‘near miss’ incident.
45 … even if the practitioner had been thinking of these issues [the prevalence of violence towards women, alcoholism, drug use and violent behaviour in the locality], they would not have absolved her from her professional obligation to make an assessment and render assistance to the occupants of the second vehicle. Furthermore, contrary to [her counsel]’s submission, it was not reasonable to expect that the occupant or occupants of the second vehicle ‘would have been agitated and might have posed a risk to the [practitioner’s] personal safety’, given that the practitioner was aware, by instinct as a doctor, that they had suffered ‘a bad injury’. Of course, if the occupant or occupants of the second vehicle had threatened violence towards the practitioner, the practitioner would have discharged her professional obligation and could have driven to the police station.’
Like the saga associated with Robert Hughes’s accident in North Western Australia which resulted in a defamation action by the crown prosecutor in the dangerous driving case brought against him, this saga has gone on for a long time. Hughes commented unkindly that ‘Western Australian justice is to “justice” as Western Australian culture is to “culture”.’
The Dekker saga has obvious parallels with that other extraordinary saga associated with a professional’s involvement in a road accident, that associated with Adelaide solicitor Eugene McGee, which even a Royal Commission did not bring to finality.
I suspect this is not the last episode in the Dekker saga. Apart from anything else, the matter is stood over until later this month for argument in relation to penalty.