Patel free; High Court rules miscarriage of justice

In June 2010 ‘Dr Death,’ Jayant Patel was convicted on three counts of manslaughter and one of grievous bodily harm in relation to his conduct as a surgeon at Bundaberg Base Hospital. In something of a shock to the Queensland public and victims and their relatives the High Court of Australia has quashed his conviction and ordered another trial.

The case against Patel was always controversial, given the embarrassment to the Beattie government of the day, which failed to vet him properly when he applied, then pilloried the people who tried to bring the matter to the attention of authorities. It now appears that there was an attempt to convict at any cost, which has backfired:

However, the High Court unanimously granted special leave to appeal, and allowed the appeal, on the ground that there was a miscarriage of justice in the conduct of the appellant's trial. The prosecution led a large body of evidence criticising the appellant's surgical skills and post-operative care in order to establish its original case that the appellant had been grossly negligent in all aspects of his treatment of the patients. As the trial progressed it became apparent, and it was not seriously disputed, that the evidence showed that the surgery had in fact been performed competently enough.

The prosecution then radically changed its case, at a late point in the trial, to focus on the appellant's decision to undertake the surgical procedures. Much of the evidence about the surgery and post-operative care was prejudicial to the appellant but no longer relevant on the prosecution's revised case. The prejudicial effect on the jury was not overcome by the directions given by the trial judge about the limited use that could be made of that evidence. A substantial miscarriage of justice occurred. The Court set aside the order of the Court of Appeal and in its place ordered that there be a new trial.

Patel has had a long and woeful record in medicine. In 1984, he was cited for failing to examine patients prior to surgery, fined and put on three years probation. After moving to Oregon, he was accused of doing unnecessary surgery causing injuries or death, and his practice was restricted and he was banned from some surgery and ordered to seek second opinions before surgery.

After the deaths of four patients, his restriction was extended statewide and in 2001 New York State ordered the surrender of his licence.

After moving to Queensland he was appointed Director of Surgery at Bundaberg Base Hospital where he was linked to 87 deaths until outed by whistle blowers. At this stage things deteriorated into a political circus. The government slammed opposition members who raised the issue and an inquiry was called.

This was shut down by the state Supreme Court after a successful appeal by two witnesses over perceived bias. Five days later the Premier, Peter Beattie ordered that the evidence the Supreme Court had branded tainted be examined by a former judge. The result was that charges of manslaughter and other matters.

There is no doubt at all that Patel was a person who should have been banned from the profession long before he got to Bundaberg, and in fact was in NYS, and it is clear that the people here who were harmed by him deserve some closure on the matter. Whether his activities deserve criminal sanctions is a matter for the DPP.

It has to be asked though, whether the original case has not been mishandled because of media and political pressure on the DPP to convict him of anything they could in order to avenge the government for the results of its own incompetence in failing to find out the history of the man. His history was exposed by a journalist who Googled his name, after all.