Background
A health practitioner who is sued for negligence in NSW will avoid liability under s 5O(1) of the Civil Liability Act 2002 (NSW) “if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice.”
This statutory defence does not apply to “advice negligence” or “failure to warn” claims; that is, where the health practitioner failed to warn or advise the patient about risks associated with treatment (see s 5P).
Nor does it apply if the court considers that the “peer professional opinion” on which the health practitioner seeks to rely is “irrational” (s 5O(2)).
Peer professional opinion does not need to be “universally accepted” in order to be considered “widely accepted” (s 5O(4)).
Section 5O introduces a version of what lawyers call the “Bolam” standard (after Bolam v Friern Hospital Management Committee [1957] 2 All ER 118), since it permits the standard of care on which a defendant is judged, for the purposes of a negligence claim, to be set by the practices of their profession.
However, unlike the Bolam standard, s 5O does not permit “small pockets of expert opinion” to set the standard of care in circumstances where “a substantial majority would take a different view” (see para 3.11). Rather, s 5O requires that the peer professional opinion on which a defendant relies must be “widely accepted in Australia as competent professional practice”.
As previous posts have pointed out (here, and here), two previous decisions of the NSW Court of Appeal (McKenna v Hunter & New England Area Health District and Sparks v Hobson) introduced a lot of uncertainty about how courts should apply the s 5O standard.
One reason for this uncertainty revolves around differing interpretations of the phrase “competent professional practice” in s 5O. Section 5O received detailed scrutiny from five Justices of the NSW Court of Appeal in Dean v Pope.
The “practice point” in Sparks
In Sparks v Hobson, Macfarlan JA followed a view that he had stated in McKenna, holding that in order to avoid liability under s 5O, a defendant must establish that their actions were in accordance with “a practice that was in existence” at the time the medical service was provided that was widely (although not necessarily universally) accepted as competent professional practice.
His Honour stated: “It is not enough that experts called to give evidence consider that the conduct was reasonable and that it would have been so regarded by other professionals if they had been asked about it at the time of the conduct” (Sparks, at [211]).
Macfarlan JA’s interpretation of the phrase “competent professional practice” clearly rendered s 5O(1) unusable by a defendant in a novel clinical scenario (such as the surgery in Sparks itself: see Sparks, at [215], [333], [343]), where tentative practices had not yet converged into an established way of doing things.
Further, a “practice” appeared to require not merely a consensus of opinion among peers, but an established “method of providing the professional services in question” (Sparks, per Simpson JA, at [332]).
Justice Basten rejected this view, pointing out that it was the “manner in which the defendant acted” [rather than a specific “practice”] which must be accepted by peer professional opinion as competent professional practice under s 5O (at [32]).
His Honour stated that the concept of “competent professional practice” in s 5O should be interpreted to cover “the whole gamut of professional services provided by the practitioner, whether or not the particular circumstances have arisen sufficiently often to result in an established practice” (at [32]).
Simpson JA agreed with the reasoning of Basten JA, pointing out that s 5O could never apply in novel or unusual clinical circumstances if the defendant had to identify “a discrete practice to which he or she conformed” (at [333]). However, Her Honour felt bound to follow the reasoning of Macfarlan JA, since his view had commanded a majority in McKenna.
Facts of Dean v Pope
Dean v Pope was listed for hearing before five Justices of the NSW Court of Appeal so that they could determine the “practice point”; that is, whether the interpretation of s 5O adopted by the majority of the court in McKenna and Sparks, was correct: see [5], [273].
Mr Dean (appellant) was a former patient of Dr Pope (respondent), a neurosurgeon. Dr Pope performed lumbar surgery on Mr Dean in June 2014 (“an L4/5 decompression, discectomy and nerve root rhizolysis”).
The surgery did not relieve Mr Dean’s symptoms and after the surgery he experienced lower back pain. In August 2015, MRI and CT scans revealed a tumour compressing Mr Dean’s spinal cord at the T5/6 level. This tumour was removed the following month.
Mr Dean sued Dr Pope in negligence, claiming that the tumour was the cause of his original symptoms, that “the lumbar surgery was unnecessary, and that the respondent had breached his duty of care by failing to provide adequate pre-operative examination and investigation of the appellant”: [32].
Dr Pope denied liability and claimed that his assessment and treatment of Mr Dean’s symptoms was “in accordance with peer professional practice that was at the time widely accepted in Australia in accordance with s 5O of the Civil Liability Act”: [33].
Dicta?
In Dean v Pope, Ward P concluded that the appellant’s case (Mr Dean’s case) failed on causation ([151]) and that the appellant had not established any error in the trial judge’s conclusion that negligence was not established: [159], [230].
Nevertheless, Ward P (with whom Brereton JA agreed: [319]) went on to conclude that s 5O, correctly understood, “was engaged and satisfied”: [237].
Macfarlan JA agreed that the appeal should be dismissed, but refrained from expressing an opinion on whether the evidence in the case met the standard he considered necessary in order for s 5O to apply: [257].
White JA expressed an opinion on the construction of s 5O, but didn’t specifically discuss whether that standard was met on the facts. However, he agreed with the reasons of Ward P and Brereton JA.
Brereton (with whom Meagher JA agreed: [258]), also stated that the appeal didn’t strictly require the “practice point” to be decided [273], but agreed that Dr Pope had satisfied the requirements for the defence on the facts [317].
It follows that four Justices appeared to agree that s 5O was engaged and satisfied on the facts. Dicta or not, their Honours’ interpretation of the scope of s 5O surely resolves “the practice point”.
Disposing with the “practice point”
The judgments of Ward P and Brereton JA, with whom White JA, and Meagher JA variously agreed, clearly indicate that the interpretation of s 5O adopted in McKenna, and followed in Sparks, is no longer law in NSW.
Ward P pointed out that s 5O focuses on “the conduct of the practitioner and determines whether that was in accordance with what, at the time of the conduct, was widely accepted by peer professional opinion to be competent professional practice” [233].
Following Simpson JA in Sparks, Her Honour emphasised that it is the “manner of acting” that must be widely accepted as competent professional practice, rather than a practice “such as might be set out in a manual” [233].
Her Honour agreed with Basten JA in Sparks (at [31]) that the statutory phrase “competent professional practice” “is apt to cover the whole gamut of professional services provided by the practitioner, whether or not the particular circumstances have arisen sufficiently often to result in an established practice” [235].
Similarly, Brereton emphasised that the s 5O defence, once raised by a defendant, “requires identifying the manner in which the professional acted, and asking whether it was at the time widely accepted as competent professional practice.
The “manner” refers to what the doctor did….In my opinion, professional practice [in s 5O] refers to the manner in which professionals practise their profession, not to a particular protocol, procedure or process. “Competent professional practice” refers to what a significant body of competent professionals would have done” [at the time of the relevant conduct] [314].
Historical consensus, or contemporary peer support?
In a short judgment, Macfarlan JA conceded that s 5O required a defendant to demonstrate that their “activity (or non-activity)” was widely accepted by peer professional opinion as competent professional practice, even if the activity had not occurred frequently enough to have become an established “practice” [255].
However, His Honour insisted that the requirements of s 5O won’t be met if the defendant simply calls expert witnesses who say that they “would have acted in a similar fashion to the defendant and that [they consider] that other practitioners, or at least a substantial number of them, would have acted similarly” [256].
S 5O(1) requires a defendant to establish that they “acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice.”
In His Honour’s view, this meant that the defendant’s “manner of activity” must have (already) become widely accepted at the time they were treating the plaintiff.
Otherwise, all the defendant will have is a show of contemporary peer support from experts who cannot point to any historical consensus, at the time, about the defendant’s actions.
Brereton JA acknowledged that s 5O judges a defendant’s actions by the “standards of the time” at which the alleged negligence occurred, rather than by standards that may have evolved “in the light of more recent medical advances”: [314].
However, His Honour rejected that the defendant needs to prove that there existed any historical consensus about the defendant’s actions over and above contemporaneous evidence that a significant body of competent professionals would have acted similarly if faced with the same circumstances.
In other words, s 5O will be engaged by the defendant establishing (now) “what a significant body of competent professionals would have done” (back then): see [314].
It follows that s 5O may involve expert witnesses considering a hypothetical: In the circumstances, would a substantial body of competent professionals have acted in the same way? (see [317]).
Macfarlan JA rejected this point emphatically, appealing to the wording of s 5O(1), which requires the defendant to have acted in a manner that “was widely accepted” (not would have been widely accepted) as competent professional practice.
Since White JA agreed specifically with Justice Brereton’s reasoning on s 5O (and Meagher JA agreed with Justice Brereton’s judgment in its entirety), Justice Brereton’s interpretation of s 5O would appear to state the current law.
However, White JA was even more explicit in stating that s 5O provides a defence where the defendant can establish that their actions were consistent with “what a significant body of competent professionals ‘would have done’” [266]. Noting that s 5O(3)-(4) contemplates “peer professional opinions offered at trial” [267], White JA suggested that “s 5O(1) need not be interpreted completely literally as requiring the existence, at the time the service was performed, of professional peer opinion as to an existing practice” [267].
As noted above, this contradicts the very point that Justice Macfarlan was keen to emphasise about the wording of s 5O.
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