What is ‘Competent Professional Practice’ within Victoria?
December 2019 saw the handing down of a decision by Keogh J of the Victorian Supreme Court, concerning medical negligence and a consideration of the correct standard of ‘Competent Professional Practice’ (CPP).
Boxell & Ors v Peninsula Health [2019] VSC 830 highlights the ambiguity in the law where it is unclear in certain parts. Ronald Boxwell experienced chest pain and was taken to Frankston Hospital, where he underwent observation, examination and investigation for approximately 8 hours. The hospital found no cause, and he was discharged without a diagnosis.
Ronald Boxwell died the next day; the cause of death was found to be acute aortic dissection (AD). The plaintiffs were Mr Boxwell’s wife and children. The case alleged that the defendant, the hospital was negligent because it failed to consider & exclude AD, it also alleged that it failed to perform a CT aortogram (CTA) which would have detected the condition in time for potentially life-changing surgery.
The defendant maintained that in discharging Mr Boxwell without a diagnosis, it was acting in a manner which is widely accepted by a significant number of respected practitioners in the field of emergency medicine (peer professional opinion). As a result, the defendant submitted that it acted in a way that was widely accepted as a competent professional practice and in accordance with s59 of the Wrongs Act 1958 (Vic).
It brought about the question of what CPP is and whether this was a case in which it was breached?
In the professional practice world, evidence can be adduced to establish whether a professional has acted in a manner that is widely accepted by peer professionals as ‘Competent Professional Practice’.
On the condition that the court does not find that the conduct was ‘unreasonable’, the conduct establishes the standard of care. As long as the defendant does not skew beyond that standard of care, the practice will ‘not incur a liability in negligence’. A considerable critique of this, however, has meant that it gives judges little room to disagree and deviate from the ‘professional standard’ and in turn impose their standards.
The decision in Boxell highlights that the law is unclear in the area of CPP. Keogh J concluded that with specific regard to expert evidence, Peninsula Health did not satisfy the preconditions in s 59(1) of the Wrongs Act and could not rely on the provision to establish that it was not negligent in releasing Mr Boxell.
It was necessary to consider the conduct of Peninsula Health against the standard of reasonable care [229]. As a result, the court held that it was not a reasonable emergency practice to discharge Mr Boxell without diagnosis before performing a CTA to confirm or exclude AD (at [313]).
The defendant was held to have been negligent, with damages to be agreed or assessed at a later date. More to come. View Judgement Here. [MOU1]
The team at Midwinters Lawyers are ready to assist you with all your legal matters specifically as they relate to the professional negligence legal landscape.
