Health Professionals’ Standard of Care and Breach of Duty in Western Australia - A Requiem for the ‘Peer Professional’ Test at a Time of Uncertainty

Marco Rizzi, "Health professionals’ standard of care and breach of duty in Western Australia - A requiem for the ‘peer professional’ test at a time of uncertainty" (2020) 26(2) Torts Law Journal

10 Pages Posted: 14 Aug 2020

See all articles by Marco Rizzi

Marco Rizzi

The University of Western Australia Law School

Date Written: August 2020

Abstract

In late September 2019, the Court of Appeal of Western Australia, comprising Quinlan CJ, Murphy and Pritchard JJA, handed down a significant judgment that sheds a measure of light over some intricate aspects of medical liability in WA. The Civil Liability Act 2002 (WA) (‘CLA’) is unique in its provision of a special standard of care for health professionals under s 5PB. Other civil liability statutes include special provisions for the liability of ‘professionals’ in general, and these provisions normally take the form of the so-called ‘peer professional opinion’ defence. The decision in Child and Adolescent Health Service v Mabior (‘Child’) gave the WA Court of Appeal the opportunity to clarify the nature of s 5PB as a special standard of care (as opposed to a defence). The Court also made some important points regarding the method of identification of relevant experts for the purpose of establishing complex scientific facts, which is a different exercise from the identification of the health professional’s peers for the purpose of establishing standard of care and breach of duty. While this decision systematises a rather oddly worded portion of the CLA, it arguably does so at the expense of its intended scope of application. Indeed, the restrictive approach adopted by the court may well have deprived s 5PB of any practical relevance. This is not an insignificant development. Indeed, the COVID-19 pandemic is putting healthcare systems under increasing amounts of pressure, and patients are bound to be cared for in accordance to practices that, by the very nature of the rapidly evolving current circumstances, cannot be well-established.

Keywords: Negligence, medical liability, peer professional, standard of care

Suggested Citation

Rizzi, Marco, Health Professionals’ Standard of Care and Breach of Duty in Western Australia - A Requiem for the ‘Peer Professional’ Test at a Time of Uncertainty (August 2020). Marco Rizzi, "Health professionals’ standard of care and breach of duty in Western Australia - A requiem for the ‘peer professional’ test at a time of uncertainty" (2020) 26(2) Torts Law Journal, Available at SSRN: https://ssrn.com/abstract=3670727 or http://dx.doi.org/10.2139/ssrn.3670727

Marco Rizzi (Contact Author)

The University of Western Australia Law School ( email )

M253
35 Stirling Highway
Crawley, Western Australia 6009
Australia

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