JUDGING DOCTORS

In three distinct situations, judges may be obliged to pronounce on doctors’ opinions or conduct. The first of these is where they are deciding actions involving claims for personal injuries in respect of which doctors have given opinions to the court. The second situation in which the judge may be obliged to pronounce on a doctor’s opinion or conduct is when, in a civil action, that doctor is sued for negligence. The third, even less common kind of case in which a judge or a retired judge may be obliged to pronounce on a doctor’s opinion or conduct is when the judge has been appointed to conduct a Commission of Inquiry, which includes an inquiry into the quality of medical services. There is a fourth kind of case in which a doctor’s opinion or conduct is in question. This is when the doctor is charged with a criminal offence, usually criminal negligence but sometimes grievous bodily harm and even manslaughter, as has occurred in one case recently in Queensland. Each of these situations involves different considerations and the application of different principles, although there are some factors common to more than one. And there are defects and illogicalities in some, which are not there in others. I propose to discuss each of these situations and, in some of them, expose what I see as some defects or illogicalities and suggest how I think they should be improved.