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Dr Dekker’s guilty verdict overturned for leaving scene of accident

Nov 24, 2014

Avant members will breathe a sigh of relief after Dr Dekker won her appeal against a decision by the Western Australian Medical Board Tribunal which found her guilty of improper professional conduct for failing to render assistance at the scene of an accident.

Following the decision of the Western Australian State Administrate Tribunal in Medical Board of Australia v Dekker1, many Avant members expressed concern about the potential disciplinary consequences if they failed to render assistance at an emergency or accident.

Case facts

In 2013, Dr Dekker was found guilty of improper professional conduct after leaving the scene of an accident without stopping to render assistance to the occupants of the car after a ‘near miss.’ The accident occurred in 2002 in the north of Western Australia. It was dark at the time of the accident and Dr Dekker did not possess a torch, any medical equipment or a mobile phone. She drove to the nearest police station to report the accident.

The appeal

In a decision delivered on 21 November, 20142, the West Australian Supreme Court of Appeal set aside the Tribunal’s decision and ordered that the Medical Board’s application be dismissed for want of evidence.

In delivering its verdict, the Court of Appeal was satisfied that the Tribunal made an error in accepting that Dr Dekker owed a duty at the time of the accident to attend and provide medical assistance to someone who was not a patient. The court noted that a positive duty of this kind was not generally accepted within the medical profession at that time.

The Appeal Court referred to the unusual features of the case. This included the lack of an existing doctor/patient relationship; the absence of any specific professional duty; the lack of light; Dr Dekker’s involvement in a ‘near miss’; her distressed state; the absence of any medical equipment; and the close proximity of a police station. Taking these factors into account, the Court of Appeal was satisfied that there was no factual basis to the Tribunal’s finding that her conduct in leaving the scene of the accident was improper.

A concerning aspect of the original case was the fact that it was heard 11 years after the accident. In light of the time that had elapsed, the Appeal Court decided that it would not be appropriate to remit the case back to the Tribunal for a further hearing.

Key take-outs

While this decision cannot be regarded as a guarantee that disciplinary action will not be taken if a ‘Good Samaritan’ fails to assist in an emergency, it helps relieve the anxiety of members of the profession who may feel they are legally bound to assist irrespective of the dangers they may face in providing assistance.

The decision does not alter the requirement for doctors in the Northern Territory to provide medical assistance in an emergency.3 Nor does it alter the NSW legislation4 which states that a doctor may be guilty of unsatisfactory professional conduct if they refuse or fail, without reasonable cause, to assist a person in need.

References

  1. Medical Board of Australia v Dekker [2013] WASAT 182
  2. Dekker v Medical Board of Australia [2014] WASCA 216
  3. Section 155 Criminal Code (NT)
  4. Section 139C Health Practitioner Regulation National Law (NSW)

Share your view

We welcome your feedback on this article – email the Editor at: editor@avant.org.au