Losing Their Grip - the case of Henry Keogh

Author: Dr Robert N Moles

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Chapter Twelve - The Medical Board Decision

On 22 June 2005 the Medical Board issued their reasons for decision in relation to Henry Keogh’s Complaint. [1] They had determined that:

“The Board cannot say that the way in which Dr Manock conducted the autopsy and in which he arrived at the murder hypothesis constituted a departure from observed or approved professional standards to a substantial degree.”

They concluded, therefore, that unprofessional conduct on the part of Dr Manock had not been established.

The Presiding Member at the hearing was Mr R Evans, a solicitor. The other members were Dr M Coleman, Professor R Kalucy, Professor I Maddocks and Professor P MacDonald.

The Board, in its Reasons for Decision stated that S54(2) of the Medical Practitioners Act provided that the Board must inquire into a complaint put to it. Yet it is clear from what they go on to say that they have not done that.

The Board accepted that Keogh could have been aggrieved by Dr Manock’s conduct which, if it fell short of proper professional standards, may have contributed to his incarceration.

The Board says that its inquiry should be directed to the matters set out in the Complaint. Yet the Board, in its reasons failed to address any of the particulars set out in the Complaint. The Board then stated:

“Where a S54 complaint has been laid, the Board’s usual role is to adjudicate upon the matters raised by the parties, rather than to embark upon its own investigations and inquiries.”

Mr Borick, on behalf of Keogh has stated in the Supreme Court proceedings that this ‘usual role’ of the Board is clearly contrary to its statutory duty.

The Act not only states that the Board must inquire into the Complaint, but it has been given special statutory powers to appoint an investigator, with special powers to demand the production of documents, and to require answers to questions. To merely adjudicate on the material put before it by the complainant, plainly falls well short of its duty to inquire.

The Board says that it will merely adjudicate, ‘particularly where the person is represented by experienced counsel’. The experience of counsel has nothing whatever to do with the failure of the Board to use its powers to question people and to demand the production of documents and other materials, which counsel, however experienced, has no power to do.

The Board says that the Act refers to a complaint being ’laid’ and that this connotes a formal procedure. Keogh says that cannot be correct. That the Board must deal with any complaint because they are required to act in the public interest. The Act says that the Board is not bound by the rules of evidence and procedure, and this suggests that the Board is not to be bound by self-imposed and unnecessary formalities.

The Board notes that Mr Borick made formal applications for it to exercise its powers of investigation and coercion - which the Board did not accept.

The Board acknowledged that it can refer the matter to the Tribunal were it sufficiently serious. The Board notes that its own powers are limited to a ‘reprimand’. The Board did not think that this matter should be referred to the Tribunal. It said:

“At no stage of the inquiry did the Board think that it should exercise its discretion to terminate the proceedings and to lay a complaint to the Tribunal.”

In terms of seriousness, this complaint might well be unique. We have documented significant cases over thirty years where Dr Manock’s standards have been questioned. [2] Adverse comments have been made with regard to his cases by the High Court of Australia, the Coroner and a Royal Commission, and a significant number of his peers, as we have outlined in this book. At no time has the Medical Board of South Australia made its own inquiries into any of those matters.

The Medical Board said that Dr Manock’s work was peer reviewed by Dr James. That is not correct. Dr James stated that he never reviewed any of Dr Manock’s cases at the time at which they were undertaken, and that Dr Manock never reviewed any of his. As we have seen, whilst Dr James had conducted some limited review of the Keogh case, he was obliged to take many of the observations by Dr Manock, ‘on the basis of his report’.

Dr Manock’s work in the Keogh case was peer reviewed to the extent that it was subsequently examined by Professors Ansford and Cordner at the time of the trial and by Professor Thomas and Dr Collins after the trial – and found wanting.

The Medical Board rejected the extensive sworn evidence of these eminent pathologists; the Board simply stated that they had applied the wrong standard. They said those specialists evaluated Dr Manock’s work according to contemporary standards rather than in accordance with the standards of 1994. That is plainly incorrect. The Board did not state which of the standards they thought might have changed between 1994 and 2004.

Was it the standard to properly record findings or observations? Was it the standard to take colour photographs of observations? Was it the standard to interpret findings in accordance with established scientific procedures?

Most surprisingly, the Medical Board said it would accept the view of a Dr Oettle, who had provided a report to the Director of Forensic Science (Dr Tilstone) relating to autopsies on babies and young children, following criticism of Dr Manock in the Baby Deaths Inquiry. This was in spite of the fact that the Medical Board had informed Mr Keogh’s legal advisors that they could not refer to the Baby Deaths Inquiry, because it was not relevant to Keogh’s Complaint

Dr Oettle had reported that the procedures in relation to paediatric autopsies at the Forensic Science Centre were in accordance with international standards. However, the Coroner for South Australia rejected Dr Oettle’s report insofar as it related to the cases in the Baby Deaths Inquiry. Dr Oetfle has never conducted any inquiry into any aspects of the Keogh case.

The Board stated that in 1994 there were no established national standards for best practice in forensic pathology. It said that it saw no reason why it should not rely upon the practices of the forensic pathologists working at the South Australian Forensic Science Centre as being of the appropriate professional standard - which rather seemed to beg the question being asked of them.

The Board stated:

“The main criticisms of Dr Manock’s autopsy procedure related to the small number of histology samples taken, the inadequacy of the toxicology scan, the scope of the medical history obtained by him, the non recording of findings, and the absence of colour photographic evidence of what were regarded by Dr Manock as bruises. Dr James did not consider that these were shortcomings that compromised the competency of the autopsy.”

Henry Keogh has subsequently initiated further Complaints to the Medical Board of South Australia in relation to the conduct of Dr James, and his evidence to the Medical Board.

The Board noted that there was no evidence to suggest that the accidental erasure of the organ weights, or the failure to record them was anything other than an isolated event. However, this is not consistent with the Coroner’s Findings into the Baby Deaths (a copy of which was submitted to the Board as an exhibit to Professor Thomas’s affidavit).

The Finding noted that Dr Thomas had examined for the Coroner the work of Dr Manock on the three cases, and prepared a report. In his report and evidence during the inquest, Dr Thomas stated that in the case of one of the babies, ‘there were many areas where microscopical examination and weighing of organs were not done’. He said even the body itself had not been weighed or measured’. Some of these practices were ‘time honoured’.

The Finding noted that in the case of another of the babies, Dr Thomas said that ‘there was no evidence of the weight of the body organs’. He said that ‘lung weights would have been invaluable’. ‘Dr Manock said he could not recall why he did not weigh the lungs’. He agreed that bronchopneumonia was unlikely to have been the cause of death. Dr Thomas said that there was no temperature of the body; he described recording the temperature as also being a time-honoured practice. He said that there was no list to identify the origin of tissues that had been taken for examination. The absence of this made interpretation of those tissue samples difficult.

In the case of the third baby, Dr Thomas was again critical of Dr Manock’s autopsy. He reported that ‘It showed that no body height or weights were given.’ During the inquest, Dr Manock said that the baby was weighed but that the weight had been misplaced. There appeared to have been no microscopical examination of the bruises. ‘Organs, other than the lungs, were not weighed’. The rib fractures were noted, but not the fractures of the clavicles (collar bones) which were easily detected on the X-rays. Taking the temperature’ was not done. Again, there was no list in relation to the tissues that were taken, making microscopical interpretation of those sections extremely difficult.

The conclusion of the Medical Board that the failure by Dr Manock to record organ weights was nothing other than an isolated event was, therefore, not correct. Even if it had been an isolated event, it might still have constituted unprofessional conduct.

The Board also said somewhat incorrectly that ‘differential aortic staining’ [as an indicator of drowning] was ‘based upon case studies’ at the Forensic Science Centre and, despite the lack of references to this in the literature, it could not be shown to be unreliable. The staining referred to at the hearing was not in fact ‘differential aortic staining’, but differential staining between the aorta and the pulmonary artery.

No evidence of the ‘case studies’ was provided to the inquiry, other than the passing references to them in the evidence of Dr Manock and Dr James. As far as we know, the reference to the accumulation of experience, has either not been documented - certainly, documentation in relation to them was not put in evidence before the Board.

The application by Dr Byard, the current head of forensic pathology at the Forensic Science Centre in Adelaide, for experimentation on pigs, and referred to in the previous chapter, stated that staining of the lining of the aorta is a contentious indicator of drowning.

He stated that it had been observed at the Centre that accidental exposure of aortic tissue to lysed blood causes staining and he wanted to study this. If the observations of Dr Manock and Dr James were correct about the state of knowledge of this sign in either 1994 or 2004, how is it possible that Dr Byard was either unaware of that or disagreed with that in 2005? If such case studies had been conducted, then why were they not referred to in Dr Byard’s research proposal? Surely, ‘accidental’ exposure cannot be the same thing as ‘case studies’.

The Board said that nothing had been submitted which excluded the cause of death as being by drowning. In submissions on behalf of Keogh, it was pointed out that one of the findings at the autopsy was that the airway of the deceased was packed with fluid and gastric contents, and Dr Manock has said that it was difficult to determine if that had occurred ante-mortem. It was made clear in those submissions that such an occurrence could only have occurred ante mortem, and if so would have been the cause of death. This would have meant that Ms Cheney had died from asphyxia following the inhalation of gastric contents, and not by drowning.

There were also extensive submissions to explain to the Board that it was not for the pathologist to exclude the cause of death as being by drowning. Drowning is defined in the textbooks as being a diagnosis of exclusion. This means that there are no signs which can be found at autopsy which are pathognomic of drowning. This means that all other reasonable causes of death have to be excluded before being able to determine that the deceased had drowned. As the brain and heart, for example, had not been properly examined, then causes of death resulting from failures within those organs could not have been excluded, and that this represented a fundamental failure of procedures.

After having stated that Dr Collins, Professor Ansford, and Professor Cordner all stated that the death could have been caused by accidental drowning, it went on to say that there was no affirmative opinion that the drowning was accidental. But what they had just referred to were in fact as affirmative as any opinions could be.

The Board said that it was therefore open to conclude that the drowning was deliberate. Deciding whether the drowning was in fact ‘deliberate’ or not was not in fact the role of any pathologist. As the lawyers say, that it the ‘ultimate question’ and it is for the jury to determine. All the pathologist can do is to present the scientific findings in a balanced and objective fashion. It may have been either consistent or inconsistent with a deliberate act. However, no amount of science can in fact determine whether the acts in question had been done with deliberation, for that goes to the issue of intentionality, which is essentially an issue for the jury.

The Board then said that the matters had been subjected to the full scrutiny of the criminal process. Again, they were straying into areas which were beyond their remit in the type of proceedings being conducted by them. Whether or not what they is correct is still yet to be determined. What is now to be put in question is that the Medical Board of South Australia has failed in its statutory duty under the Medical Practitioners Act.

Sadly, this will take some further considerable time to resolve.

In the meantime, Keogh and his legal advisers have taken the view that the decision by the Medical Board is unacceptable, and have issued proceedings in the Supreme Court for a Judicial Review of the decision.

Endnotes

[1] This can be found at http://www.medicalboardsa.asn.au/media/files/422.pdf

[2] These cases are discussed in Moles, RN A state of Injustice, Lothian Books, South Melbourne, 2004.

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