Court of Appeal Decision: Dekker v Medical Board of Australia | Defence Update

The Western Australian Court of Appeal was recently required to decide in the case of Dekker v Medical Board of Australia¹ whether there is a specific professional duty for medical practitioners to attend and provide medical assistance to a person who is not a patient in circumstances where the medical practitioner is:

• aware that a motor vehicle accident has, or may have, occurred in their vicinity
• aware that anyone involved in the accident has suffered, or may have suffered, any injury
• “physically able” to render assistance.

Case history

The incident occurred one evening in 2002. Dr Dekker was in a stationary position on a dirt road waiting to turn right at a T-intersection. Another vehicle travelling along the road into which she was preparing to turn suddenly veered towards her. Dr Dekker took evasive action by moving her car across the road. The other vehicle passed behind her, crossed an embankment and ended up in a ditch. Dr Dekker did not see the other vehicle crash, but did hear the noise of impact. Dr Dekker immediately drove to a nearby police station to report the incident. She was said to be in a “state of shock”, “petrified” and “freaked out” by the “near miss”.

Medico-legal issues

In 2013, the State Administrative Tribunal (“Tribunal”) found that Dr Dekker had been guilty of “improper conduct in a professional respect” for failing to stop and render assistance in a “near miss” incident involving her motor vehicle and a second motor vehicle.²

The Court of Appeal set aside the Tribunal’s improper conduct finding. It found that a medical practitioner does not owe a professional duty to assist, as formulated by the Tribunal.

The Court of Appeal observed that the duty, as formulated by the Tribunal, would have applied:

• without regard to the mental state of the doctor, to the circumstances in which the doctor is, or may be, aware that a motor vehicle accident has occurred in his or her vicinity, and the circumstances of the accident
• to a doctor who lacked mental capacity or was affected by alcohol
• even if there were other emergency services on their way or already in attendance
• irrespective of whether the doctor has other medical or non-medical commitments
• equally in a remote location in the bush where there is no town and no ready access to police or other emergency services, as in a city where the occupants of the vehicle or passers-by may be readily in a position to contact police or ambulance services.

The Court of Appeal found there was no evidence of any such specific professional duty that was generally accepted by members of the medical profession in 2002.

The Court of Appeal allowed Dr Dekker’s appeal and dismissed the Medical Board’s application for want of evidence.

Conclusion

This decision should provide reassurance to medical practitioners that their professional duty to render assistance in an emergency situation will depend on consideration of a range of issues, and the particular facts and circumstances existing at the time.

Professionally, the conduct of doctors practising in Australia is assessed in accordance with the Medical Board of Australia’s Good Medical Practice: A Code of Conduct for Doctors in Australia.³ Section 2.5 of the Code states:

Treating patients in emergencies requires doctors to consider a range of issues, in addition to the patient’s best care. Good medical practice involves offering assistance in an emergency that takes account of your own safety, your skills, the availability of other options and the impact on any other patients under your care; and continuing to provide that assistance until your services are no longer required.

Enore Panetta
Director at Panetta McGrath Lawyers, Perth

References

1.Dekker v Medical Board of Australia [2014] WASCA 216.
2.Medical Board of Australia and Dekker [2013] WASAT 182. A detailed discussed of this case is provided in the article “Duty to Offer Emergency Assistance” published in Defence Update Autumn 2014. Available at: defenceupdate.mdanational.com.au/duty-to-offer-emergency-assistance/.
3. Medical Board of Australia. Good Medical Practice: A Code of Conduct for Doctors in Australia. Available at: medicalboard.gov.au/Codes-Guidelines-Policies/Code-of-conduct.aspx.