I read with interest an article in the MJA earlier this month, which comments on the status of the ‘peer defence,’ introduced, in WA, via the Civil Liability Act section 5PB(1).  This section, provides that:

An act or omission of a health professional is not a negligent act or omission if it is in accordance with a practice that, at the time of the act or omission, is widely accepted by the health professional’s peers as competent professional practice.

This provision and similar ones in other States was introduced based on a concern (misplaced I have always thought) that Courts were setting standards for doctors which were too high and failing to appreciate real world considerations.

Despite concerns at the time this section was introduced, that it would significantly ‘water down’ legal expectations of health professionals, years on, I cannot think of a case I have handled since, in which this test, compared with the previous ‘reasonable care’ as determined by the Courts, would (or has) changed the outcome.  

In my experience, if a claim would succeed under the pre-section 5PB Law, it would succeed now.  If it would fail under the section 5PB Law, it would probably have failed before.  This includes the facts in the Melchior case, referred to in the MJA article.

It is theoretically possible that a Judge may consider care or advice provided by a health professional was not reasonable, despite it being in accordance with accepted practice followed by a significant number of the health professional’s colleagues.  Obviously this would be very exceptional.  We all hope (and believe) it is not going to be common for a significant number of doctors, for instance, to be all acting unreasonably in their care or advice they provide to their patients.

Even in such an unlikely scenario, it is unclear whether section 5PB would give a defence.  This is because of sub-section (4), which via a convoluted path, probably says that such defence does not apply if the practice by this group of peers is not reasonable…

Overall, as I have thought for some time, my present view is that section 5PB is/was primarily a reassurance to the medical profession that it will only be in an exceptional case that Judges will find a doctor negligent, when he has followed well-recognised and broadly followed and justified practice in their care.  In my view this was the case before the section was introduced and remains the same.  The section changes perception of the legal position, more than it changes its application in the ‘real world.’

fn: it needs to be remembered that such section has no application in relation to the required warnings as to risks associated with treatment.  Peer consistent practice (ie ‘none of us tell patients about this risk’) is no defence in such context (see s5PB(2)).