Part Two: Important Development": Henry Keogh Case: Complete Decision Of Medical Board Of South Australia Censuring Dr. Ross James;

THE RESPONDENT’S FINAL REASON FOR NOT DISCLOSING THE HISTOLOGY OF THE MARK WAS THAT HE DIDN’T THINK IT WAS PARTICULARLY RELEVANT. THE BOARD STRUGGLED WITH THE POSSIBLE RATIONAL [RATIONALE] BEHIND THE RESPONDENT’S COMMENT ESPECIALLY GIVEN THE CIRCUMSTANCES OF THE CASE. MUCH WAS MADE IN THE TRANSCRIPT OF POTENTIAL GRIP MARKS AND PROMINENCE AND SIGNIFICANCE WAS GIVEN TO THE BRUISES ON MS CHENEY’S LEGS. THAT THE RESPONDENT THEREFORE CONSIDERED THAT THE HISTOLOGY OF THE MARK WAS NOT RELEVANT IS [TO] THE BOARD’S MIND VERY SURPRISING.

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MEDICAL BOARD OF SOUTH AUSTRALIA;
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The Medical Board of South Australia's decision to censure Dr. Ross James, a pathologist, for evidence he gave at Henry Keogh's murder trial will hopefully be an important first step toward Keogh's release an exoneration;

Rather than providing the readers of this Blog with my comments based on edited version I prefer to lay out the entire decision, as follows:

(A word of caution: The reader will have to wade through some technical jurisdictional groundwork before getting to the meat of the decision);

In the Medical Board of South Australia;

Adelaide;

Complaint pursuant to Section 51(1)(d) of the Medical Practice Act 2004;

Henry Vincent Keogh;

Complainant;

Ross Alexander James;

Before the Board Comprising;

Presiding Member: Ms C Cashen;

Members: Dr P Henschke – Mr P Laris – Dr M Slattery;

Reasons for Decision;

16 August 2007;

Background:

This matter arises from two complaints (identified as 18 November 2004 and 21 April 2005) brought to the Medical Board (the Board) by Mr Keogh (the complainant) against Dr James (the respondent) pursuant to section 54 (1) (d) of the Medical Practitioners Act 1983 (the 1983 Act).

The complainant asserted that pursuant to section 5 (1) of the 1983 Act the respondent’s conduct in relation to the practice of medicine had been at relevant times “improper, and or unethical, incompetent and or negligent” and that in consequence was unprofessional.

The relevant time related to the respondent’s involvement in the Keogh criminal proceedings in 1994 and 1995.

Subsequent to the laying of the complaints the respondent initiated proceedings in the Supreme Court seeking orders including that the MBSA proceedings be permanently stayed; that they were an abuse of process and or ultra vires. As this action (James v Medical Board of South Australia and Keogh Full Court [2006] SASC 267) was unsuccessful the complaints proceeded before the Board.

Given the complexity of the case including having regard to the volume of materials required to be considered and the time frame over which the complaint ranged, pre hearing conferences were held with the aim of crystallising the complaints and appropriately managing the hearing. This process resulted in the preparation of accepted materials and agreement that the matter would proceed to hearing by way of submissions on the documents. The matter was thereafter scheduled for a two day hearing.

Consequently in August 2007 in accordance with section 54 (1) of the Medical Practice Act 2004 (the 2004 Act) a panel of the Board was constituted to hear the complaints. The hearing was completed on the first day and the decision was reserved.

Subsequently the Board reconvened on 22 November 2007 in response to a letter dated 24 October 2007 from Mr Hegarty (for the complainant). The letter raised 3 points; it referred to comments made by Dr Mudge in an article in “The Australian”, it referred to certain submissions of a personal nature allegedly made by Mr Edwardson during the hearing and it raised a query concerning the publication of the transcript.

Dr Mudge whilst in no way conceding bias, indicated his intention to voluntarily withdraw from the hearing on the basis of a possibility of a perception of bias. Mr Borick then made assertions implying bias on the part of the whole Board and suggested that the Board should disqualify itself however after some discussion Mr Borick withdrew his application, content that the Board should continue with the matter. The Board did not hold to the view that it was subject to bias or perceived bias or that it should disqualify itself. Subsequently the presiding member under Section 54 (3) of the 2004 Act and with the consent of the complainant and the respondent determined that the remaining four members of the Board panel would continue and complete the proceedings.

As regards the second issue raised in the letter (Mr Edwardson’s submissions) Mr Borick, in effect, argued that to correct the misinformation supplied by Mr Edwardson the Board should allow Mr Borick to submit written submissions on the issue of haemolytic staining. Mr Edwardson opposed this and indicated his willingness to withdraw the alleged offending submissions. After some further discussion Mr Borick sought to provide the Board with a detailed analysis of the scientific literature regarding haemolytic staining however, the Board resolved not to receive the material, the hearing having been completed. The Board did indicate its willingness to seek additional information from the parties if it considered it necessary in dealing with the matter. The issue concerning the transcript was not fully developed however it appeared to resolve on the basis of proposed communication between the parties.

A further letter was received by the Board from Mr Hegarty dated 14 December 2007 whereby he again raised the issue of Mr Edwardson’s submissions and sought that the Board reconvene or receive written submissions. The Board declined, it being satisfied that the parties had had ample opportunities to provide the information to the Board and itself being satisfied that it had been provided with sufficient relevant information upon which to base its decision.

The Hearing

Mr Borick QC appeared for the complainant and due to the unavailability of Mr Hegarty his instructing solicitor sought and was given leave with the consent of the respondent to be assisted by Dr Harding. Mr Edwardson QC and Mr Selley appeared for the respondent who also attended.

Prior to the commencement of the hearing the Board entertained submissions from Mr Campbell on behalf of Channel 7 who was seeking to be present at the hearing. The Board declined Mr Campbell’s application and proceeded to deal with the complaints in his absence. Subsequently Mr Campbell with the consent of the Board and the parties attended at the reconvened hearing in November.

In considering this matter the Board noted that under section 19 of the 2004 Act (which is in part similar to section 17 of the old act) the Board is not bound by the rules of evidence and may inform itself on any matter as it thinks fit and must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.

Pursuant to section 54 (2) of the 1983 Act (S51(2) of the 2004 Act) the Board is directed to “enquire into the subject matter of the complaint”. The Board holds to the view as stated by Chief Justice Doyle in Keogh v the Medical Board of South Australia and Anor [2007] SASC 342 paragraph 94 that it is … “not obliged to conduct an inquiry into the subject matter of the complaint in the manner in which, for example, the coroner conducts an inquiry into the circumstances of the death.” “The provisions of the act do no lead to the conclusion that when conducting proceedings under section 54 the Board must assume the responsibility for assembling and presenting the relevant evidence in support of or in opposition to the allegations made, subject only to such evidence as the parties might choose to present.”

The Board as discussed in the pre trial process was relying on Mr Borick to make good the complaints that had been laid against the respondent. However, the Board held the view that if there was additional information which the Board considered necessary or relevant to the complaints that this would be raised with the parties and investigated.

The respondent in their outline of argument and submissions raised certain threshold questions including the issue as to whether the complainant was an aggrieved person pursuant to the Act and whether the matter should be stayed as an abuse of process. These issues are dealt with in the decision.

Pertinent Legislation

Although the complaints in this matter were brought pursuant to Section 54 of the 1983 Medical Practice Act (the 1983 Act) the Board which dealt with the matter was a product of the 2004 Act and subject to the general functions and powers and procedures as set out in divisions 4 and 5 sections 13 to 21 of that Act. In managing the interplay of the past and present Acts the Board was guided by the Medical Professional Conduct Tribunal decision of Mauro (4) [2006] SAMPCT 1. A decision which considered the background to and the consequences of the different sanctions in the 1983 and 2004 Medical Acts. Noting that “Although commenced pursuant to section 58 of the 1983 Act, the proceedings, for all purposes, are continued as if under the 2004 Act.”

Section 3 of the 2004 Act defines unprofessional conduct as including:

“(a) improper or unethical conduct in relation to professional practice; and
(b) incompetence or negligence in relation to the provision of medical treatment; and
(c) a contravention of or failure to comply with -
(i) a provision of this Act; or
(ii) a code of conduct or professional standard prepared or endorsed by the Board under this Act; and
(d) conduct that constitutes an offence punishable by imprisonment for 1 year or more under some other Act or law.”

Section 51 (1) of the 2004 Act stipulates who may lay a complaint alleging unprofessional conduct before the Board.

(d) a person who is aggrieved by conduct of the medical practitioner…..

Sectio 51 (2) of the 2004 Act stipulates

Where a complaint has been laid before the Board under this section, the Board must inquire into the subject matter of the complaint unless the Board
(a) considers that the complaint is frivolous or vexatious; or
(b) lays a complaint before the tribunal…

Section 46 of the 2004 Act stipulates that unprofessional conduct is a proper cause for disciplinary proceedings and

Section 51 (6) of the 2004 Act stipulates

“If, after conduction[of] an inquiry under this section, the Board is satisfied on the balance of probabilities that there is proper cause for taking disciplinary action against the respondent, the Board may, by order do one or more of the following:

(a) censure the respondent

(b)require the respondent to pay to the Board a fine not exceeding $5,000

(c) if the respondent is a registered person –
(i) impose conditions of [on] the person’s registration restricting the respondent’s right to practice medical treatment.
(iii) suspend the respondent’s registration on a specified register or in a specified speciality for a period not exceeding 1 month.

The Complaints

In support of the claims of unprofessional conduct Mr Borick provided the Board with a large and somewhat wide ranging collection of grounds and particulars with numerous alleged inconsistencies and deficiencies relating to the respondents conduct identified, itemised and reframed.

The complaint dated 18 November 2004 included 12 particulars with annexures, the Supplementary Complaint contained 6 complaints with 37 particulars, and the complainants outline of argument dated 20 April 2007 included further claims of unprofessional conduct.

At the hearing Mr Borick provided to the Board a written submission [C1] which while it appeared to refer to most of alleged unprofessional conduct did not specifically loop back to or tie up with the complaints.

The Board determined that some of the alleged grounds of unprofessional conduct as for example the assertions that the respondent misled the Defence Counsel and the DPP in the course of their preparation for the trial (Outline of argument 20 April 2007) went beyond the capacity of the Board to meaningfully or realistically explore and as they were not pursued in submissions the Board did not specifically address them.

The Complaints focused on only two aspects of the evidence provided by the respondent arising from the autopsy of Ms Cheney namely the mark on her medial left ankle (the mark) and the issue of haemolytic staining of the aorta.

The complainant’s case

Mr Borick asserted that the respondent although, he was aware and or should have been aware that there was no histological evidence to support the fact that the mark was a bruise never declared that when he provided a report to the DPP in December 1994, nor when he gave evidence in the two Keogh murder trials.

Further Mr Borick asserted that the respondent misled the Court by providing them with incorrect or incomplete information and that he failed to correct the impressions and implications created by his omissions and or incomplete provision of information such that they (the Court and relevant persons) were left with a flawed and or incorrect understanding / appreciation of the cause of Ms Cheney’s death.

As regards the issue of haemolytic staining in the aorta Mr Borick asserted that the respondent gave evidence that such staining was a classical sign of freshwater drowning when it wasn’t and when he knew or should have known that it wasn’t.

Further that the respondent misled the jury because he was aware at all relevant times that his opinion in regards to haemolytic staining or the aorta and freshwater drowning was not supported in medical and scientific literature. Asserting that it was relevant that the respondent had not, himself, conducted any experiments or tests to support his view and that he had no independent professional support for his opinion. Further that the respondent had co authored a paper entitled “Characteristic Features of Fresh Water Drowning” which Mr Borick claimed did not support “differential staining” as an observation of value.

The respondent’s case

Mr Edwardson counsel for the respondent disputed all of Mr Borick’s assertions. He argued that the respondent had acted appropriately at all times and that the evidence provided by the respondent was valid, accurate and not misleading.

He did not dispute that at the time of the murder trials the respondent was aware that the histology of the mark did not confirm it as a bruise however he stressed that negative histology itself did not mean that the mark was not a bruise merely that the histology did not confirm it as a bruise. That the respondent’s view of the mark was that it was one component of the picture concerning Ms Cheney’s death and the histology was not critical to that overall picture. He stressed that there was no intention on the part of the respondent to mislead the jury; that the mark was just one aspect of the case but that it had been given excessive prominence.

He asserted that the evidence which the respondent provided at the trials was the best that he could provide given the circumstances in which he was required to give his evidence. He argued that the respondent’s involvement in the matter was very much after the event, (in the nature of peer review) that he had not conducted the autopsy, and in consequence was not responsible for the collection of specimens or the recording of outcomes.

He noted apparent discrepancies in the number and subject matter of the histological slides available at the two trials, noting doubts as to what information the respondent actually had available to him. He noted that Dr Cordner had made a similar response to that of the respondent concerning the identification of the disputed mark. He referred the Board to where the respondent had referred to “no cells” (as in meaning no bruising), where he had been measured in his responses, sought to refer to notes and advised that he was uncertain.

As regards grounds concerning haemolytic staining Mr Edwardson argued that the defence had ample knowledge and opportunity at the time of the criminal trials to question the respondent’s assertions in this area including available scientific support, but that did not occur. He noted that the respondent’s evidence regarding freshwater drowning was in any event based on other evidence in addition to haemolytic staining.

He disputed that Dr James sought to mislead the jury or that his conduct in the Keogh proceedings was in any way unprofessional.

Preliminary issues

As to the issue as to whether Mr Keogh was an aggrieved person the Board considered the arguments put by Mr Edwardson but was not swayed to his view. The Board considered that Mr Edwardson put far too narrow a definition on “aggrieved person” including his assertion that “the complainant could only be “aggrieved” by what was said or done by the respondent in connection with the criminal trials if he satisfied the Board that he did not murder the deceased… “

The Board considers that such a narrow and rigid qualification would be contrary to the intention of the Act in particular as regards the Boards function of protecting the public.

In relation to the abuse of process argument the Board considered the Full Court decision in James v Medical Board of South Australia and Keogh [2006] SASC 267 and determined that the complaint proceedings were not an abuse of process not that they are frivolous or vexatious. The complaints were not so obviously untenable or manifestly groundless as to be utterly hopeless. Attorney-General v Wentworth (1988) (5) 14 NSWLR 481 at page 491.

In line with the judgement of Bleby J in the above 2006 Full Court decision “… there is a much wider public interest to the served by disciplinary proceedings such as those specified by the Medical Practitioners Act … and that appropriate standards of professional conduct or [are] observed by medical practitioners.” The functions given the Board under the Medical Practice Act 2004 clearly dictate the Board’s obligation to regulate the practice of medicine in the public interest. Consistent with that is the hearing of complaints brought against practitioners. In consequence the Board determined to hear the complaints.

In dealing with the complaints the Board was not concerned with the Keogh trials as such but rather the respondent’s conduct in those trials. Noting Anderson J’s comment in the above 2006 Full Court decision “The Board can discern if it (the issue of the mark) was relevant and if so whether the fact that it was not mentioned amounted to unprofessional conduct. It is simply a matter for the Board to determine on the basis of the earlier evidence. It is not a challenge to that evidence.” James v Medical Board of South Australia and Keogh [2006] SASC 267.

In dealing with this matter the Board considered the criticisms raised in regard to the respondents conduct, determined if any of them were made out and then determined whether the conduct amounted to unprofessional conduct.

The Board’s findings

The Board considered it worth noting that but for the respondent’s assertion in 2001 that he knew the mark was not a bruise; it seemed highly unlikely that the matter would have come before it. In consequence the Board observed that it was the respondent’s own action which had generated the complaints of unprofessional conduct. The Board further noted that the respondent had at all times consistently refuted the assertion that he had given false evidence or misled the court.

It appeared to the Board that the complaints generally centred around the following assertions:

- that the respondent did not disclose relevant information (the histology of the mark) during the criminal proceedings ….

- that the respondent gave false and or misleading answers during the Keogh criminal proceedings in regards to the mark and that the non disclosure alone or coupled with the provision of false information created the incorrect impressions or assumptions in the mind of the Court (jury …) and that the respondent did not correct those wrong impressions / assumptions

- that the respondent gave false and misleading information regarding the issue of haemolytic staining.

“Disclosure of information”

There is no doubt and indeed the respondent has never denied that he did not inform the court that the histology of the mark did not confirm it as a bruise. The issue for the Board was therefore whether the respondent’s failure to inform, constituted unprofessional conduct.

The respondent clearly articulated his reasons for his non disclosure when giving evidence before the Medical Board in 2004 stating “I don’t think that it was asked of me and I don’t think it was something that would alter the assessment that these were indeed bruises ………..I didn’t think it was particularly relevant.” (page 305 of the transcript)

The Board considered the transcript of the respondent’s evidence in the two Keogh trials, the report which he gave leading up to the trial dated 22/12/94 and the materials provided by the parties in their submissions.

The Board considered whether the respondent was questioned regarding of the histology of the mark. The Board concluded that there was no manifest question put to the respondent which specifically required him to give a direct answer in regards to the histology of the mark. However there were many general questions about the bruises, specifically questions about bruising on the legs as illustrated in the first trial where the respondent was asked “as far as the bruising on the legs was concerned, you had the benefit of slides did you not, … Yes, two of them” he continued “one section was taken from … and the third section was from the bruise on the medial side of the left ankle”. (transcript page 533) The Board considered that the respondent, as an expert witness, could have and should have taken this opportunity to inform the court that the histology of the mark did not confirm it as a bruise. As an expert the respondent had an overriding duty to assist the Court on matters within his area of expertise.

Further in the second trial commencing on page 221 and concluding on page 223 of the transcript there is quite an intensive dialogue regarding the histology of the bruises. The Board was again surprised and (sic) that the respondent did not reveal the histology of the mark.

The Board was on [of] the view that the respondent as an expert witness and an experienced pathologist should not have required a specific direct question as a trigger for disclosure about the histology of the mark. On reading the transcript it was clear to the Board that the Court was seeking information about the mark, it was reasonable to conclude that the respondent would have been aware of this and that the respondent should have provided it.

The second explanation offered by the respondent was that “he did not think that it would alter the assessment that they were bruises”.

The Board found this statement concerning as it indicated that the respondent appeared to have a flawed and untenable understanding of his role as an expert witness. This is especially so when it was remembered that the slide was the only direct information that the respondent had in regards to the mark. He did not see the body, he did not see a photograph of the mark or have any other direct information in relation to the mark. The histology of the mark was realistically the only information that the respondent had, so to speak, first hand to directly assist the Court. That the respondent did not think that this information could potentially impact on an assessment of the bruises or that the Court should be informed of it appeared to the Board remarkable.

The respondent’s final reason for not disclosing the histology of the mark was that he didn’t think it was particularly relevant. The Board struggled with the possible rational [rationale] behind the respondent’s comment especially given the circumstances of the case. Much was made in the transcript of potential grip marks and prominence and significance was given to the bruises on Ms Cheney’s legs. That the respondent therefore considered that the histology of the mark was not relevant is [to] the Board’s mind very surprising.

The Board in determining the meaning of unprofessional conduct was guided by the decision of Chief Justice Doyle in Keogh v The Medical Board of SA & Anor [2007] SASC 342. The Board accepted that recognised professional standards and practices will provide a guide without being definitive as to what amounts to unprofessional conduct in the practice of medicine and that a “trifling or harmless departure from recognised professional standards probably is unlikely to amount to unprofessional conduct of [for] the purposes of the act.”

The Board did not consider that the failure to inform the Court amounted to either a trifling or harmless departure from recognised professional standards. Rather the Board considered that on the balance of probabilities, the respondent’s conduct in withholding the histology of the mark was unprofessional.

Regardless of what the respondent’s opinion was as to the importance, relevance or otherwise of the histology of the mark he should have provided this information to the Court.

The Board determined that the respondent failed in his duty to the Court and that by his conduct left himself open to the assertions put forward by the complainant that by his conduct he misled the court.

“False and misleading evidence / assumptions”

The Board again considered all of the evidence but whereas previously the respondent had himself brought his unprofessional conduct to light and admitted it, in regards to these allegations the respondent was adamant that he had done nothing wrong, that he had not given false evidence and that he was not responsible for any incorrect assumptions that may have come from his evidence.

The Board considered that the allegations were problematic being inextricably mixed with the other allegations of failure to inform. This was especially the case as it appeared to the Board that all the allegations (the omission of correct information and the provision of wrong information) were used as a platform to support the second tier or flow on allegations of unprofessional conduct namely the respondent’s failure to correct false or incorrect assumptions.

The assertions that the respondent gave false evidence all related back to the respondent’s oral evidence at the two murder trials. Although there was mention made of the December 1994 statement in submissions, it was flagged as evidence of a failure to inform not as a false answer.

The Board examined the evidence of the respondent and on the face of it registered some concern that aspects of his evidence could have been viewed as false or misleading. For example as illustrated when the respondent discussed the aging of bruises and healing changes and when he responded “no” when he was effectively asked if there was anything else of significance arising from his information or involvement. (transcript page 215)

However on balance and for the following reasons the Board was not satisfied that the respondent’s conduct constituted unprofessional conduct.

The Board found it a difficult process to examine the respondent’s evidence given at the trials (via transcript) in part because it was oral evidence. There was no static written statement which the Board could consider, dissect and analyse rather there was record of a complex interaction between the respondent and others.

By examining the transcript the Board obtained a glimpse of a very complex scenario, a situation where ‘the spoken word belongs half to the speaker and half to the listener’. Counsel for the accused, the DPP and the judge all questioned the respondent in a dialogue that was fast moving and dynamic and with changing emphasis. There was obvious interaction between the respondent and the various active participants in the Court however the transcript was one dimensional when the court room had multiple dimensions. It was not clear to the Board how the Court generally reacted to or utilised the respondents evidence or what assumptions they drew from it or how this fed back into their questioning of him. Nor whether the respondent’s evidence and or other factors impacted on how his evidence was pursued or marshalled.

Accordingly, it was difficult for the Board to feel confident that its examination of the transcript enlightened it to the subtleties and nuances of the trial. In short, that it had a sufficiently accurate understanding of the respondents conduct.

Further, as a general observation, the Board noted, that the caution which should be exercised when considering a witnesses apparent response, is equally as relevant to the consideration of the transcript. Meaning that people have different communication styles; some are slow in answering questions put to them, some appear to be evasive when responding, some are direct, some more ponderous and those that meander may deliver or intend to deliver the same answer as someone who is more direct.

Added to this the Board considered that the actual role undertaken by the respondent, that of peer reviewer of Dr Manock’s work, further increased the complexity of the Board’s task. The reality of the respondent’s role meant that during the hearing he was called upon and required to speak to, not only his own evidence but to recall and to report on Dr Manock’s evidence, differentiate and compare that evidence with his own, reach conclusions based on his and Dr Manock’s information and articulate these to the Court. The Board considered this to be a very difficult task. That the respondent did do this is illustrated in the following extract from his evidence given at the second trial. The respondent stated “I’ve seen the photographs of the 3 bruises on the lateral side of the left ankle. I haven’t seen a photograph of the bruise on the medial side. But if it was present as he (Dr Manock) suggests, then a grip mark is the obvious explanation …. The four bruises that he (Dr Manock describes – 3 on the outside and one on the inside – collectively would suggest a grip mark I think that you can express that as the … )“ (page 207 second trial). The Board found the dialogue confused and confusing and considered it indicative of the difficulties under which the respondent gave his evidence. And this in consequence again made it difficult for the Board [to] determine the conduct of the respondent.

Additionally the Board considered that an examination of the transcript evidence revealed levels of confusion and inconsistency which was especially so in the area of histological evidence. For example in the first trial there appeared to be 3 histology slides involving bruising but in the second trial there was mention of four. The difference was never examined or explained. There was uncertainty in relation to sections of the discussion focussed on the identification and ageing of bruising and that the histological evidence was not specifically discussed on a slide by slide basis. The Board was mindful that such apparent uncertainty may have impacted on the respondent’s evidence, conceivably affecting its direction quality and clarity.

Having considered all the difficulties associated with the respondent’s evidence the Board could not on balance accept that his conduct amounted to unprofessional conduct.

“Haemolytic staining”

The Board did not consider that the evidence concerning the issue of haemolytic staining was as fraught. Again the Board considered all of the evidence provided including the supplied list of textbook references and literature re differential haemolytic staining in helping discern the type of drowning.

The Board concluded that given the state of knowledge at the time of the Keogh trials it was open to the respondent to conclude and state as an expert that there was notable (as in more than trivial) expert opinion and scientific rationale to support the finding of differential haemolytic staining of the aorta as being of diagnostic value.

The Board did not agree with the complainant’s assertion that the respondent (as an expert) must conduct experiments personally to support his views, nor that there was no support for the respondent’s then held views. The Board determined the leading texts to which it was directed (5 of the 10 predating 1995) indicated that there was a measure of peer support for the respondent’s remarks. Such substantive texts repeated the evidence provided.

As regards the complainant’s criticism of the respondents article the Board noted that the 2001 article co authored by the respondent was not specifically directed to the point at issue. The article cited with James as a minor contributor (3rd of 4 authors) was not an analytical paper on such a matter but merely a 20 year audit of suicidal drownings in SA. The paper had a single sentence in a brief discussion which recorded: “The diagnosis of drowning itself may be difficult as there are no specific diagnostic features at autopsy”. The word specific in a scientific sense needs explanation. Specificity means the degree to which a test or observation (eg staining) has force in ruling in an event such as fresh water drowning. A highly specific test or observation has few false positives. The sentence reminds the reader that this observation does not have a high degree of specificity or certainty in reaching the conclusion of fresh water drowning. It does infer that it needs to be linked with other observations as occurred here.

Additionally the respondent in his evidence to the Medical Board hearing gave ample comment to reveal that he was aware of other causes of haemolytic staining and at the second Keogh trial he gave evidence of his other observations supporting fresh water drowning including the appearance of the lungs, fluid in a fit person’s chest cavity and the circumstances in which the deceased person’s body was found, all thereby reducing reliance on haemolytic staining as the sole basis for the offered mode of death.

In consequence the Board was not satisfied on the balance of probabilities that the respondent’s evidence around the issue of haemolytic staining could support a finding of unprofessional conduct.

Summary

The Board determined that the respondent was guilty of unprofessional conduct in that he failed to disclose relevant information to the Court concerning the histology of one mark on Ms Cheney’s body.

The Board did not find that the respondent was guilty of any other complaints of unprofessional conduct. The Board was not satisfied that the respondent gave false evidence to the Court or that his evidence concerning haemolytic staining was unprofessional.

The Board considered that the evidence which the respondent gave to the Medical Board clearly articulated his flawed understanding of his role as an expert witness and that it was his ignorance or disregard of his responsibilities rather than a deliberate desire on his part to mislead the court which led to his conduct.

The Board noted that the finding of unprofessional conduct related back to events that occurred in 1994 and 1995. That in the intervening 13 years plus, there have been significant changes in pathology and forensic medicine and that there is now a sharper focus on the duties and obligations of medical practitioners, and their responsibilities to the Court as evidenced by available guidelines, the guides / rules for expert witnesses and the Medical Board publications.

The Board is aware that the Keogh proceedings have continued for many years and that they have generated a significant level of public debate. The Board acknowledges that this is a high profile matter; the parties were advised that the decision would be published and the respondent will no doubt be entrained in media commentary.

Having found the respondent guilty of unprofessional conduct and noting the disciplinary measures available under S 51 (6) of the 2004 Act the Board will reconvene to hear submissions from the parties as to possible sanctions."

More on this decision to follow - including the Board's eventual decision on a similar application made by Mr. Keogh in connection with Dr. Manock;

Harold Levy...hlevy15@gmail.com;