The Gould appeal: irrational yet widely accepted practice?
Published on August 22, 2018 by Bill Madden
As first published in the Australian Health Law Bulletin, August 2018, Volume 26.7.
This decision saw the NSW Court of Appeal consider the “irrational exception” to the “widely accepted practice” provision in determining breach of the standard of care.
South Western Sydney Local Health District v Gould (Gould) saw the NSW Court of Appeal (Basten, Meagher and Leeming JJA) review a decision which concerned the use of antibiotics in the treatment of an injury, but the legal principles addressed by the court are of greater interest — not only to NSW lawyers.
Published in mid-April 2018, the Gould decision followed only 6 weeks after Sparks v Hobson; Gray v Hobson (Sparks), in which a differently constituted Court of Appeal  had addressed the NSW formulation of the “widely accepted practice” provision.
While Sparks had focused on s 5O(1) of the Civil Liability Act 2002 (NSW) (the Act), Gould required the NSW Court of Appeal to consider the statutory exception to the widely accepted practice provision, as found in s 5O(2) of the Act—often referred to as the irrational exception. Similar provisions exist in equivalent legislation  in Queensland (s 22), South Australia (s 41), Tasmania (s 22), Victoria (s 59) and Western Australia (s 5PB).
Section 5O: the text
For ease of reference, s 5O is reproduced below in its entirety:
(1) A person practising a profession (a professional) does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice.
(2) However, peer professional opinion cannot be reliedon for the purposes of this section if the court considers that the opinion is irrational.
(3) The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section.
(4) Peer professional opinion does not have to be universally accepted to be considered widely accepted.
Gould: factual background
Robert Gould, a child then aged 8, fell and injured his left hand. He presented to the emergency department at Campbelltown Hospital in the late afternoon and underwent surgery at around 8:30 am the following morning. Although discharged the following day, gangrene developed in his left thumb leading to its amputation about 3 weeks later.
In the first instance judgment there were a number of findings of breach, but only one which was found to have caused the loss of the plaintiff’s thumb. The causative breach of duty was held to be the failure to use an appropriate antibiotic regime, including a second-generation cephalosporin plus gentamycin. The former had been administered, but the latter had not.
The widely accepted practice: judicial disagreement
Unsurprisingly, given that Gould followed soon after Sparks, the court mentioned the differing views expressed in Sparks as to whether it is necessary to identify a particular practice in order to engage s 5O. However, in Gould, a practice as to administration of antibiotics was identified on the evidence and so, the differing views of the court in Sparks were of no practical significance.
Leeming JA noted:
Different views have been expressed in this Court as to whether it is necessary to identify a particular “practice” in order to engage s 5O. The distinction was captured by Simpson JA in Sparks v Hobson; Gray v Hobson  NSWCA 29 at , as to whether the reference to “practice” is a reference to the practice of the relevant profession, or more narrowly to a particular specific practice or method of providing the services. The latter was favoured in McKenna v Hunter & New England Local Health District  NSWCA476;  Aust Torts Rep 82-156, however, an appeal was allowed by the High Court on the anterior question of duty: Hunter & New England Local Health District v McKenna (2014) 253 CLR 270;  HCA 44. In Sparks v Hobson; Gray v Hobson, Basten JA and Simpson JA favoured the former, while Macfarlan JA favoured the latter,with Basten and Simpson JJA expressing different views as to the precedential weight to be given to this Court’s earlier decision. That divisive issue may be put entirely to one side for the purposes of this appeal. On any view, the practice of administering antibiotic prophylactic following an open fracture which was confined to flucloxacillin and cephazolin and did not extend to gentamicin — a practice which is set out in the fairly mechanical decision-tree in the Therapeutic Guidelines — Antibiotic — is a “practice” capable of engaging s 5O.
The irrational exception
The primary judge made no express finding that it was widely accepted in Australia in 2011 by peer professional opinion that it was competent professional practice to administer only a cephalosporin to a compound fracture such as that … [of] the plaintiff …The appellant submitted that such a finding was implicit, because the primary judge [need only address] s 5O(2) if his Honour had formed that view.
Central to this discussion were the findings by the trial judge that the opinions expressed by two medical practitioners called by the defendant, Associate Professor Gatus and Dr Haertsch, were relevantly irrational within the meaning of s 5O(2) of the Act and therefore not available to ground a defence under s 5O(1), in respect of the non-use of gentamicin. On appeal, those findings were partly addressed by reference to procedural unfairness, (given the lack of submissions on the s 5O(2) issue), but of more value as precedent was the statutory interpretation discussion.
The primary judge rejected Dr Haertsch’s opinions because they were proffered “without soundly-based supporting reasoning” and were therefore irrational. In relation to Associate Professor Gatus, the primary judge had said:
On the issue of antibiotic prophylaxis the generalised consideration of the desirability of adhering to evidence-based guidelines founded upon principles of antibiotic stewardship, without considering the specific antibiotic needs of the patient after taking into account the likely range of infective organisms to which the patient has been exposed, must be seen to be an irrational approach.
Leeming JA stated that the test of irrationality required by s 5O(2) was not that applied by the primary judge. He described three elements in the trial judge’s reasons:
(1) First, the primary judge followed an approach he had previously taken in Hope v Hunter and New England Area Health Service  NSWDC 307 at . In the earlier decision, his Honour said that “irrational” did not mean “without reasons”, but rather referred to “reasons that are illogical, unreasonable or based on irrelevant considerations” …
(2) Secondly, his Honour added, at , that he regarded the term as being used “in the non-pejorative sense” …
(3) Thirdly, his Honour then proceeded to give dictionary definitions of “unreasonableness”, namely, as meaning “without sound or logical reasons, or not endowed or guided by reason”: at .
Readers of this publication will remember that in the Review of the Law of Negligence: Final Report, (Ipp Report) an example was given at paras 3.18–3.20 as to the possible utility of the irrational exception. Leeming JA recited that example, only to call into question its suitability:
The Ipp Report gave by way of example Hucks v Cole  4 Med L R 393, where a doctor failed to administer penicillin despite seeing septic spots on a patient’s skin which he knew contained organisms capable of causing puerperal fever. That practice was endorsed by a number of distinguished doctors, but rejected by Sachs LJ at 397:
[T]he fact that other practitioners would have done the same thing as the defendant practitioner is a very weighty matter to be put on the scales on his behalf; but it is not, as Mr Webster readily conceded, conclusive. The court must be vigilant to see whether the reasons given for putting a patient at risk are valid in the light of any well-known advance in medical knowledge, or whether they stem from a residual adherence to out-of- date ideas.
It is not entirely clear to me how Hucks v Cole was intended to illustrate the mischief to which s 5O(2) was directed, save that Sachs LJ’s reference to “very weighty matter” tends to confirm that the occasions for its use will be rare. In any event, while the discussion in the Ipp Report and the English decisions to which it refers assist in confirming the meaning to be given to “irrational” in s 5O(2), they should not be used as a substitute for or a gloss upon the statutory text. The question in Australia is now the application of statute, namely, does the court consider the peer professional opinion to be irrational?
The appellate discussion of s 5O(2) seems to focus more on what “irrational” is not, rather than what it is.The core findings appear to be as follows:
- Irrational is unquestionably pejorative in the context of s 5O(2).
- The test for irrationality is not satisfied merely when the basis for a practice is unexplained, or as the primary judge put it, “oracular”. Leeming JA at this point observed that competent professional practice to administer lime juice to treat and to ward off scurvy amongst sailors preceded by many decades any understanding of the role of vitamins in human health. The fact that the reasons given in the late 18th and 19th centuries for the practice were wrong, or non-existent, did not make the practice irrational.
- “The test of irrationality imposed by s 5O(2) is quite distinct from the test of admissibility.”
- The test posed by s 5O(2) is not applicable when “an expert opinion is dependent upon making good particular assumptions, which are not established on the evidence.”
- The irrational exception will “only rarely be available.”
The concluding statement seems only to be that:
Text, context and purpose all support the conclusion that it is a seriously pejorative and exceptional thing to find that a professional person has expressed an opinion that is “irrational”, and even more exceptional if the opinion be widely held. To consider a body of opinion to be “irrational” is a stronger conclusion than merely disagreeing with it, or preferring a competing body of peer professional opinion.
Another issue: the interplay between ss 5O and 5B
The appellate court in Gould touched on another issue: the interplay between ss 5O and 5B of the Act, which sets out the general principles as to when a person is not negligent in failing to take precautions against a risk of harm. The trial judge had applied a two-stage test, firstly addressing ss 5B and 5C under the heading breach of duty of care and then considering the availability of s 5O as a defence.
However, Leeming JA took the view that:
In a case (such as the present) where the defendant establishes the preconditions to s 5O, then there is a single standard against which the defendant is assessed, namely, s 5O, subject always to s 5O(2).
In coming to this conclusion, his Honour commented as follows:
The force of those observations is readily demonstrated.
(1) First, it is to be recalled that s 5B (like many other provisions in Part 1A of the statute) is a gateway provision, expressed in terms of a necessary but not sufficient condition for a finding of “negligence” (ie, a failure to exercise reasonable care and skill). Section 5O, in contrast, in the circumstances in which it applies, means that the defendant “is not liable”. That tends to support a construction that when the preconditions to s 5O have been made out, then it supplants the analysis otherwise required by s 5B.
(2) Secondly, there is no sound reason first to find whether a professional who has been alleged to have been negligent breached his or her duty of care by reference to what has been held in Rogers v Whitaker and Naxakis v Western General Hospital (1999) 197 CLR 269;  HCA 22, only then to determine, in accordance with s 5O, that the erstwhile breach of duty does not incur any tortious liability. There is no reason to add to the complexity of trials, so as to require the evaluation of the professional’s conduct against not one but two separate standards.
(3) Thirdly, there is no good reason for the potential reputational damage which may be suffered by a finding of breach of the test at common law to be incurred when, if s 5O applies, statute has said that “the professional does not incur a liability in negligence”.
(4) Fourthly, that approach is wholly consistent with the terms of reference to which the Ipp Committee was subject. As noted above, those terms required that “in conducting this inquiry, the Panel must … (d) develop and evaluate options for a requirement that the standard of care in professional negligence matters (including medical negligence) accords with the generally accepted practice of the relevant profession at the time of the negligent act or omission”. Section 5O reflected that term of reference, and I see no reason why it should not be construed accordingly, in accordance with s 34 of the Interpretation Act 1987 (NSW). Its heading is, after all, “Standard of care for professionals”.
Leeming JA sat as a trial judge in the Common Law decision in the matter of Zhang v Hardas (No 2)  (Zhang), in which the reasons for judgment were published on the same day as Gould. In that first instance decision, his Honour held that were it necessary to do so, he would conclude that by reason of s 5O, the defendant chiropractor did not incur a liability in negligence from his treatment of the plaintiff. Curiously, despite his comments about reputational damage referred to above, his Honour, in Zhang said:
If I am wrong as to s 5O(1) being an independent answer to Ms Zhang’s claim, then it remains necessary for Ms Zhang to satisfy s 5B. Normally, one would not assess the conduct of a defendant against two separate standards (that determined by s 5O, and that determined by s 5B). However, because of the contest on the application of s 5O, and the absence of any authority on the point, I think it is appropriate to make alternative findings on both bases.
Leeming JA then held that:
In failing to refer Ms Zhang to her general practitioner when she presented with new symptoms at the end of, and after, the course of 12 sessions, [the chiropractor,]Mr Hardas breached his duty of care.
Unfortunately, for this writer at least, the appellate discussion in Gould on the irrational exception discussed above seems to end a little abruptly, leaving the reader without much guidance on when the irrational exception will apply. The passage does however, seem to highlight the potential for a significantly different approach in NSW, compared to the Victorian approach, where the exception uses the term “unreasonable” rather than “irrational”. The Western Australian legislation also departs from the use of the term “irrational”, referring instead to adoption of a practice so unreasonable that no reasonable health professional in the health professional’s position could have acted or omitted to do something in accordance with that practice.
As for the ss 5B/5O interplay, it seems likely that in an effort to comprehensively address all potential issues, trial judges will mostly continue to address both ss 5B and 5O when working through the civil liability legislative framework.
1. South Western Sydney Local Health District v Gould  NSWCA 69; BC201802707.
2. Sparks vHobson;Gray vHobson NSWCA29;BC201801378. See also, A Lu “An established practice? Refining the defence of competent medical practice” (2018) 26(5) HLB 78.
3. Basten, Macfarlan and Simpson JJA.
4. Civil Liability Act 2002 (NSW), s 5O(1).
5. The legislation in each jurisdiction is the named the Civil Liability Act, save for Victoria where it is named the Wrongs Act.
6. Gould v South Western Sydney Local Health District (2017) 25 DCLR (NSW) 12;  NSWDC 67; BC201740162 per Levy SC J.
7. Above n 1, at .
8. Above n 1, at .
9. Above n 1, at  and .
10. Above n 6, at .
11. Above n 6, at .
12. Above n 1, at .
13. Commonwealth of Australia Review of the Law of Negligence: Final Report (September 2002) https://static.treasury.gov.au/uploads/sites/1/2017/06/R2002-001_Law_Neg_Final.pdf.
14. Above n 1, at –.
15. Above n 1, at .
16. Above n 1, at .
17. Above n 1, at .
18. Above n 1, at .
19. Above n 1, at .
20. Above n 1, at .
21. Above n 1, at .
22. Above n 1, at .
23. Above n 1, at .
24. Zhang v Hardas (No 2)  NSWSC 432; BC201802771.
25. See D Short’s article titled “Zhang v Hardas (No 2) — the standard of care for professionals” published in this same issue.
26. Above n 24, at .
27. Above n 24, at .
28. Above n 24, at .
29. Wrongs Act 1958 (Vic), s 59(2).
30. Civil Liability Act 2002 (WA), s 5PB.