An established practice? Refining the defence of competent medical practice

The NSW Court of Appeal has held that that it is not necessary to prove the existence of “an established practice” when pleading a defence based on what is widely accepted as competent medical practice or competent professional practice. In 2013, the NSW Court of Appeal in McKenna v Hunter & New England Local Health District1 (McKenna) held by majority that proving the existence of an established practice at the time of the alleged negligence was necessary to invoke the operation of a defence under s 5O of the Civil Liability Act 2002 (NSW) (the Act). Similar provisions exist in other state and territory legislation. The appeal decision2 in McKenna was unanimously overturned by the High Court in 2014 which ruled that the health facility and assessing psychiatrist did not owe the deceased’s relatives a duty of care. The High Court was not required to consider s 5O or the question of competent professional practice, reserving this for a future case.3 The NSW Court of Appeal in the decision has now considered this issue in Sparks v Hobson; Gray v Hobson4 (Sparks), finding that it is not necessary to prove the existence of an established practice when pleading a defence based on what is widely accepted as competent medical practice or competent professional practice.