The findings of the Medical Board inquiry were published in June 2005. When I read the report I was stunned and angry. It resolved, ‘that unprofessional conduct on [Manock’s] part has not been established and the complaint must be dismissed with costs’.103
In their deliberations the panel decided that the test they should apply for ‘unprofessional conduct’ was whether it fell substantially below that accepted by the subject’s peers at the time. Having refused any reference being made to the coronial inquest into the baby deaths, the board then quoted from that inquest themselves, from Dr Godfrey Oettle’s audit of previous infant and adolescent autopsies performed at the Forensic Science Centre.
Oettle had reviewed the case notes of one hundred previous autopsies on children aged under 15 conducted between 1989 and 1993. He came to the view that ‘the thoroughness of these examinations was proper and to the standard deemed as acceptable by international protocol’.104 While Oettle’s findings served a very limited purpose in the inquest, the Medical Board dusted off the decade-old document and employed it to underpin their conclusions. Other courts had ruled the baby deaths findings inadmissible on the basis they related to paediatric pathology and weren’t relevant to any murder trials involving Dr Manock. The Medical Board chose to do the reverse. The report, which had no direct relevance to the Cheney autopsy and was only introduced at the end of the oral evidence, was used to assess the professional standing of an autopsy that did result in a murder trial. Kevin Borick made no objection to the report in his written submission, possibly not appreciating how it would be used. Because there was no national standard in 1994 with which to objectively judge Dr Manock’s conduct, the board referred to Dr James’s general acceptance of Dr Manock’s findings but largely relied on Dr Oettle’s report to exonerate him.
Whatever was covered in the three-day hearing about what was and wasn’t done in Anna-Jane’s autopsy appeared to have been deemed irrelevant. However, this was to be by no means the last word. It would take over a year before at least some of what had gone on behind the scenes in the Medical Board review came to light. What was to emerge would have many wondering about the conclusions the board had reached.
Over a year later, on 15 September 2006, I made my way up in the lift in the old Supreme Court building to Courtroom Eight on the third floor. The long narrow chamber, with a raised stage and rows of hard wooden benches, was more like an ancient classroom than a modern courtroom. Keogh’s lawyers had appealed the Medical Board’s decision and the matter was now before Justice John Perry of the Supreme Court. From a media perspective, Perry was one of the good judges, with his lyrical turn of phrase and a sensible attitude towards open justice.
As a result of this debacle and a series of others, Independent MP Nick Xenophon championed a number of families who had lost loved ones as a result of medical negligence and had received short shrift from the board following their demands for accountability. In early 2006 the Parliament’s Statutory Authorities Review Committee handed down their interim report into the Medical Board of South Australia. After assessing its performance when dealing with a catalogue of serious complaints by members of the public the committee said it believed the board had ‘failed in its legislative duty to protect the health and safety of the general public’.105 The board’s conduct was frequently described by complainants as ‘high-handed, offensive, heartless and adversarial’.106 One of the committee’s recommendations was that the board be ‘stripped of its power to investigate complaints and undertake disciplinary hearings’.107 This was not immediately taken up and for a number of years the Medical Board continued to be the profession’s disciplinary watchdog. What was stripped from the board was the old guard; their replacements promised a significantly changed culture.
The new board appeared to be determined to make amends in a number of ways, which included cooperating with the court in Keogh’s appeal of the Dr Manock findings. Their lawyer, Dr Chris Bleby SC, delivered the entire file of the complaint to the court with instructions not to oppose it being handed over to the appellant. Dr Manock’s lawyers vigorously objected and fought to have the contents suppressed, arguing that, like judges’ notes, many of the documents within had not been intended for distribution.
Justice Perry addressed the court and asked if there was anyone from the media who wanted to be heard on the suppression application. Chris Bleby, who had represented me on one occasion, glanced my way. I rose to my feet and made my off-the-cuff submission as best I could. I pointed out that the board’s final report had contained little of the thought processes the panel had used to assess the autopsy and that anything that could help explain how the conclusions were reached would be instructive. If as a matter of transparency the board itself had no objection to the contents being made available, then it shouldn’t be for the respondent to dictate the status of the file. I went on to say this was a matter of public interest, since the board is a statutory authority and as a matter of public confidence we should be entitled to view its workings. His Honour reminded me that he was not running a royal commission, but the day was won and the file was released to Keogh’s legal team.
Among the contents of the file were the original submissions from three of the four medical experts who sat on the panel. The Presiding Officer, lawyer Richard Evans, is a medical negligence defence specialist practising in Sydney. Part of Evans’s role was to coordinate the opinions of the panellists, and from there compile a report with which they must all concur. Professor Kalucy, a psychiatrist, didn’t appear to contribute, except perhaps to represent the interests of the board itself.
I couldn’t believe what I was reading. The opinions expressed were unanimous. They all found that the autopsy, by 1994 standards, was indeed incompetent. When I rang Richard Evans in Sydney to ask him what had happened between the writing of these emails and the final report he was apoplectic. He demanded to know how I’d got my hands on the notes. When I told him they’d come from the Supreme Court, he hung up. I rang Kevin Borick, who was chuckling with delight. He, like me, believed this was such a dramatic demonstration of a process corrupted by the interference of some as yet unknown source that it couldn’t possibly be allowed to stand. No one could now deny the shocking injustice being dealt to Henry Keogh. What could possibly excuse or explain the backflip we were witnessing?
Professor Ian Maddocks AM, a highly regarded specialist in palliative care, had been the first to provide his submission to the panel Chair. Maddocks’ assessment was, ‘I believe that the Board should find that the procedure by which Dr Manock conducted that autopsy was unsatisfactory according to the standards of 1994.’108 He recommended a reprimand and that Dr Manock not be permitted to work again unless under supervision. He was talking about the man who had been the Senior Director of Forensic Pathology for the state for nearly three decades.
Bacteriologist Professor Peter McDonald had concurred: ‘I suggest Ian Maddocks’ comments are exactly on the mark, I fully endorse them.’109 McDonald analysed the work practices at the Forensic Science Centre in 1994 and found them seriously deficient, though he didn’t blame Dr Manock for the conditions under which he worked. The next contributor was less forgiving.
Dr Mark Coleman, a pathologist, submitted the third opinion. He opened with, ‘The autopsy was substandard … It is the absence of data that is the problem in this case because it renders the conclusions untestable.’110 Dr Coleman observed, ‘The documentation in the autopsy in question was manifestly inadequate, even by the lowest of standards.’111 He then addressed the question of whether the circumstances and the working environment at the Forensic Science Centre had a significant bearing on the quality of the autopsy:
Dr Manock was not just a senior pathologist, he was the chief forensic pathologist for the State. He had the opportunity and indeed the responsibility, over many years, to raise the standards, to introduce up-to-date systems, guidelines and protocols. On the evidence of the Cheney autopsy, he did not. This failure of stewardship cannot be allowed as a mitigating argument. Indeed the reverse applies. Dr Manock held himself out to be the chief pathologist. This carries with it an expectation of a tertiary-level specialist’s standard of practice and behaviour.112
Coleman, like McDonald, agreed with Professor Maddocks’ finding and wrote, ‘as such the charge of unprofessional conduct is proven’.113
However, Coleman also wrote of his belief that the board was being used as a vehicle for another purpose:
Mr Borick appears to have attempted to re-run aspects of the trials and to use the Medical Board process to solicit evidence and even to entrap witnesses into making statements conflicting with their own earlier evidence. Further, he has used the resulting material to generate a new complaint against Dr James and to add to the complaint against Dr Manock. This is a corruption of due process. The ancillary and deliberate feeding of the media carnivores demeans and further corrupts the inquiry. Mr Borick’s behaviour is profoundly unprofessional and appropriate commentary is recommended. I think that the panel should meet for at least one more time, to discuss the decision, before drafting the final determination.114
It’s possible this invitation explains the subsequent reversal of the board’s findings. However, it also indicated the hostility that Kevin Borick had engendered, fairly or otherwise, as a representative of Keogh.
Leaving aside this animosity, the professional musings were the exact opposite to the conclusions in the report the board had all put their names to a few months later. Not one word of dissent appeared in those findings. There’s no hint in the files of what happened between mid-March, when Dr Coleman suggested they get together for a final ‘determination’, and 22 June, when the report was published. All we know is that not one of their numerous criticisms found its way into the final document. Nor did a single reference to Dr Godfrey Oettle’s report, so important to the report’s conclusions, appear in any of their original submissions. It’s hard to understand how three medical experts who individually were in such strong agreement could then all reverse their opinions so completely without something being recorded.
Fourteen months after the Medical Board published its decision Henry Keogh was granted his right to appeal by Justice Perry. It was another 12 months before the appeal was decided, making it almost exactly three years since the original hearing and six years from the complaint being first lodged.
After all that time, when the judgement was at last reached on 25 September 2007, Chief Justice John Doyle’s ruling was astonishing. Doyle found the Medical Board had applied the wrong test for ‘unprofessional conduct’, which allowed them to rely on Dr Oettle’s findings in order to clear Dr Manock. Superseded legislation – that is, the replacement of the Medical Practitioners Act 1983 (SA) with the Medical Practitioners Act 2004 (SA) – had provided for what was known as ‘usual practices’ by which Dr Manock’s opinions could be judged. This was a rubbery measure and to stray from such practices did not automatically mean ‘unprofessional conduct’. The question that, under the 2004 Act, should have been asked was whether Dr Manock’s opinions were supported by professional texts and research beyond the Forensic Science Centre; in other words, whether his practices conformed to the up-to-date standards of scientific practice elsewhere at that time.
The body empowered by the State Government to monitor the professional standards of our medical profession didn’t seem to know how to do its job. It was staggering this could happen. As for those experts who had performed that last-minute backflip from ‘unprofessional conduct’ to ‘satisfactory conduct’, Justice Doyle’s judgement offered them the cloak of protection. It noted no fault could be found with their decision-making. It was quite conceivable that they’d all had a similar and sudden change of heart. That much was undoubtedly true.