Letters
Ethics
Volume 195 - Issue 2

What is the value of professional opinion?

Author:  Christopher J Ryan

Med J Aust 2011; 195 (2): 101-102. || doi: 10.5694/j.1326-5377.2011.tb03226.x
Published online: 18 July 2011
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To the Editor: In their report on the findings in Hope v Hunter and New England Area Health Service,1 Mahar and Burke suggest that some of the judge’s reasoning “may reasonably cause apprehension for clinicians relying on the peer professional practice defence”.2 In her Editor’s Choice, Katelaris mirrors this apprehension.3 But the judge’s findings are not nearly so troubling.

Mahar and Burke state that “the court considered ... that because the defendant had completed much of his training in the United Kingdom and the United States, the evidence that he gave was not necessarily indicative of professional practice in Australia”. However, the judge had said:

Without at all intending any criticism of Associate Professor Haertsch [expert witness for the defendant] ... his practice was in accordance with what he had learnt in his training in Edinburgh, Scotland and in Michigan, USA which was not, of itself, evidence as to peer practice in this country.1

The judge’s point was not about the defendant having trained overseas — the judge made no mention of where the defendant had trained. The judge was concerned about the expert witness who was testifying as to what extent the technique used by the defendant was peer practice in Australia. In doing this, the expert witness described how he conducted this sort of procedure, drawing on his overseas training. Quite reasonably, the judge regarded this as “not, of itself, evidence as to peer practice in this country”.

Also, Mahar and Burke state that because the same expert witness had consulted a colleague about her practice concerning ganglion excision, the “court noted that this witness ... was in sufficient doubt to consult another practitioner” and “this may have partly informed the court’s decision to reject the expert’s evidence for the purposes of the defence”. However, the judge had said:

I also consider it telling that Associate Professor Haertsch appeared to be in sufficient doubt about the matter that he thought it was necessary to consult Dr Gschwind for her views and for details of her practice concerning ganglion excision. I infer from the fact of such consultation, together with the fact that Associate Professor Haertsch has only operated on little rice grain sized ganglia ... that he has not had the same breadth of experience as Associate Professor Connolly [expert witness for the plaintiff] as to what constituted widely accepted professional practice ... concerning the excision of a half centimetre sized ganglia of the type that the plaintiff had presented for removal. In this regard I prefer the evidence of Associate Professor Connolly to that of Associate Professor Haertsch.1

Seen in context, it is hard to draw the conclusion that the testimony of the expert witness “was discounted because ... he consulted a colleague about her views on the case”.3 If the consultation with a colleague discounted the testimony, it was a very minor factor.

Author

  • Christopher J Ryan1
  • 1. Discipline of Psychiatry and Centre for Values, Ethics and the Law in Medicine, University of Sydney, Sydney, NSW.

Correspondence: christopher.ryan@sydney.edu.au

References

View this article on Wiley Online Library