WA’s Court of Appeal has now handed down its decision in the case brought on behalf of Sunday Mabior, the young 16-month-old child who suffered burns and then medical care at Princess Margaret Hospital, almost 14 years ago, in December 2005.

Sunday’s claim succeeded at trial before then District Court Judge Derrick. This was the hospital’s appeal against such decision.

Our Court of Appeal handed down its much anticipated decision in this matter on 27 September 2019. The hospital’s appeal was dismissed and the Court provided guidance as to the ambit section 5PB, the WA provision explicitly dealing with the standard of care required of health professionals in this State.

The 1st 290 paragraphs and 76 of the 104 pages of the decision deal with attacks made on Judge Derrick’s factual findings, fundamentally, that in part, Sunday’s adult respiratory distress syndrome (ARDS) and resulting disability was caused by untreated sepsis.

This had been the central issue at the action’s trial. Only in the event it could be established that this was so, could the argument succeed that initiation of antibiotic treatment (which was not commenced until after she was transferred to the ICU department at Princess Margaret Hospital in the early hours of 12 December 2005) could have reduced or avoided her resulting disability.

The Court of Appeal’s discussion commencing at paragraph 292 on page 76 is the portion of more general application and worthy of careful scrutiny.

In short, the Court of Appeal have adopted the narrower of 2 potential interpretations of section 5PB.

The Court of Appeal have determined that for section 5PB to limit the standard of care required on the part of a health professional, at the time of the relevant care or advice there must have been a widely accepted as competent professional practice, with which the health professional complied.

The Court of Appeal rejected the alternative, broader interpretation of section 5PB put forward, proposing that such section, in effect, abrogated decisions as to the required standard of care to the relevant health professional’s peers: the question in any case being whether such peers now thought the health professional’s conduct was competent.

As can be gathered, such interpretation, had it been adopted, may have significantly lowered the standard of care required. Deciding whether a health professional was negligent or not would depend not on the Court’s assessment of how reasonable their care was, but rather whether their peers thought it competent or not.

The section also now only has application in clinical scenarios sufficiently common for such a ‘widely accepted’ practice to exist. Ad hoc or unusual clinical scenarios will not covered (see Wright v Min for Health in this context).

Following the Court of Appeal’s decision, in my view section 5PB has only very limited, if any, possible scope. If, as stated at paragraph 325, it arises if (and only if) there “is evidence that there is a widely accepted practice supporting the defendant’s conduct,” almost universally a health professional would be found to have acted reasonably, applying the more general section 5B standard.

It is hard to envisage any real-world scenario in which liability would arise under section 5B’s general application, but now be removed by application of section 5PB. This could only occur if a ‘widely accepted’ practice at a relevant time was actually unreasonable, given consideration of the factors identified in section 5B. This could only ever arise in incredibly exceptional circumstances.

Apart from this clarification of the scope of the section’s application, the Court of Appeal’s decision is also helpful, from a practical perspective in providing guidance to those acting in this area as to the way in which the relevant issue should be dealt with on pleadings. Contrary to an earlier asserted view, it is not necessarily required for a plaintiff/claimant to plead that alleged negligent conduct was not in accordance with a widely accepted practice. It is for the defendant to plead such an accepted practice and to provide details of it (rather than the unhelpful generic recitation of the section’s terms, commonly seen in defences).

It is also only necessary to deal with this question if it is raised on the pleadings or otherwise, I would expect, via exchanged expert reports prior to trial. If no suggestion is raised of any ‘widely accepted practice’ it is not necessary for a plaintiff/claimant to lead evidence negating it at trial.

Interestingly the Court of Appeal indicated that the differences in the wording of WA’s section 5PB compared to the New South Wales provision, made it more clear that this narrower interpretation of the provision should be accepted in WA. The decision does not assert the same interpretation should apply in NSW (or other States).

In conclusion, as stated earlier, the Court of Appeal’s decision I think makes clear that section 5PB will be of limited relevance in assessing medical negligence claims, in this State at least, going forwards. The liability of health professionals, as with any other category of person, will be primarily a question of application of the traditional principles embodied in section 5B. Instances in which section 5PB “excuse” care or advice that would otherwise give rise to liability under section 5B are likely to be incredibly rare and primarily of academic interest.