Proving Peer Professional Opinion

Kerry Hogan-Ross, a partner in DLA Philips Fox, looks at the good news in the application of the modified Bolam test in a psychiatric case.

In 1992, in Rogers v. Whittaker, the High Court ruled that Judges could decide what was negligent medical practice, describing accepted medical practice as "a useful guide only". This reversed the so called Bolam Principle which provided that a doctor is not negligent if he acts in accordance with reasonable medical opinion, even if other doctors adopt a different practice.

After tort reform, the HIH collapse and the medical indemnity crisis, the position is a little different. All states but not the Territories, introduced "a modified Bolam Test" (section s5O of the Civil Liability Act 2002) which provides that:-

1. A professional is not negligent if it is accepted that he/she acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion.
2. However this opinion cannot be relied upon if it is considered to be irrational.
3. The fact that peer professional opinions may differ does not prevent one or more of them being relied on for the purposes of this section.
4. Peer professional opinion does not have to be universally accepted.

Section 5O does not apply to failure to warn cases such as Rogers v. Whittaker, which would be decided in the same way today.

There is an illustrative case - Walker v. SWAHS where a young man being treated for a psychiatric disorder made a suicide attempt, was taken to Nepean Hospital and discharged a week later. Eleven days later he drank (a disputed) amount of alcohol, climbed a tree, fell and became quadriplegic.

The case became a battle of experts, with opinions differing as to whether he should have been involuntarily detained or otherwise medicated.

The Judge found that doctors and staff at Nepean Hospital had "acted in accordance with a practice that was widely accepted in Australia by peer professional opinion". His Honour rejected the opinion of the plaintiff's expert that he would have acted differently on the basis of after acquired intelligence (hindsight).

The Judge went on to say that "It is insufficient to say as (the plaintiff's expert) did that he would have made a different decision. It is, particularly, insufficient to say on the basis of after acquired intelligence that a particular combination of medications should have been prescribed to the plaintiff.

In my view the Judge would have found in favour of the defendant whether or not s5O had been enacted. In summary, the point of s5O is to prevent Courts imposing impossibly high standards on professionals. Nevertheless the bar is still set reasonably high for professionals seeking to establish what accepted peer professional practice is in any given sphere.

Kerry Hogan-Ross
Partner
DLA Philips Fox