When the FBI Comes Calling…®

December 3, 2005

Why this man should come back

By Hedley Thomas

Police need to act quickly to force Jayant Patel's return, writes Hedley Thomas

DOUG MCNABB cannot figure it out. In the US, where he runs a criminal law practice with offices in four cities, this high-profile attorney with a wealth of experience in extradition matters remains baffled by a critical feature in the Jayant Patel saga.

Why, he asks himself every time he receives an update on a case that first piqued his interest when it spilt into the international media in April, did Queensland police not move months ago to apply to extradite the former Bundaberg Base Hospital director of surgery?

And why, McNabb asks, is your Police Commissioner still now, after all the sworn evidence in a judicial inquiry, candidly acknowledging it will be months before the first step to an extradition application is taken to have Queensland's most wanted man face justice?

"What will prevent this guy exercising his right to go to some other country?" McNabb says. "It's sad when you think about all the victims." He chooses his words carefully, stressing he does not want to appear patronising or offensive to Australian law enforcement authorities.

"But if (Patel) were my client, I would be telling him the sense I have is that the law enforcement people in this case in Australia are not well-versed in international extraditions. The sense I have is they do not fully comprehend it.

"The process they are taking does not do anything but benefit the target of the investigation. I'm bewildered by the slowness of the process to investigate and request a petition for extradition."

According to McNabb, the most sensible option months ago, and still now, would involve charging Patel with an offence -- for example, in relation to one of the 13 deaths attributed to his negligence -- thus triggering a range of formal responses in the US which would result in him being either held in custody or prevented from travelling abroad.

The key, he says, is to file early. Additional charges of a similar nature may be filed at a later stage.

"It seems very clear to me that Australia has sufficient evidence now to charge him," he says. "You cannot request Interpol to issue an arrest warrant until a red notice (a notice issued about a person with a view to extradition) is filed. If he goes to another country, Australia will have to start all over again. And if he goes to another country with no extradition treaty, you may never see him.

"Why are you not land-locking him in the US with a red notice and seeking to have him extradited? It is important to have a solid case, but that can be prepared while he's landlocked."

An officer from the US Marshals, the organisation that would carry out any arrest, said: "We haven't even heard that there's anything in the pipeline. There's nothing we can do."

Queensland Police Commissioner Bob Atkinson has declined an opportunity to brief The Courier-Mail on the issue.

He and Premier Peter Beattie have stressed the need to build a watertight case before handing it to the Office of the Director of Public Prosecutions.

Commissioner Atkinson said this week: "I understand the community's desire to expedite the investigation, but the sheer scale and complexity of the case had made it difficult for investigators."

It was "imperative", he added, that the evidentiary briefs were thorough and sound before being formally submitted to the DPP, who would then assess the massive file "in terms of sufficiency of evidence before referring the matter to the Federal Government for extradition proceedings".

In Bundaberg yesterday, Beryl Crosby, speaking on behalf of the patients' support group, seemed unhappily resigned to a long wait for justice.

"I understand that it's a lengthy process because they are still interviewing every patient -- hundreds of people -- and the nursing staff," she said. "Patients are very upset it's taking a long time. It is stressful for them because the patients cannot move on until Patel comes back. That's their justice: to see Patel pay for all the tragedy he's caused."

Jim Kitts, a patient who fears he has only weeks to live after a botched procedure, told Crosby he wanted to take on Patel himself.

Without doubt Atkinson is determined to ensure there are no flaws in the evidence he proposes to pass to DPP Leanne Clare next year.

The investigation by homicide squad and other specialist detectives, started in April when evidence of Patel's fraudulent conduct in lying about his US negligence to secure a $200,000 a year job in Bundaberg, was first established three weeks after nurse Toni Hoffman relied on Opposition MP Rob Messenger to air in Parliament the grave concerns about the Indian-trained surgeon's competence.

Apart from an inexplicable breakdown in communications between the police and the previous inquiry -- which led to the detectives prematurely stopping their investigation until Tony Morris, QC, suggested that was not a prudent course -- Atkinson's task force has taken statements from dozens of people with evidence about Patel.

And for much of the Commission of Inquiry, which culminated in Commissioner Geoff Davies, QC, urging criminal charges of manslaughter (in relation to the deaths of 13 patients who received negligent care), assault, assault occasioning bodily harm, grievous bodily harm and negligent acts causing harm, a homicide detective sat in the courtroom to note evidence.

The report of Davies described how "painfully obvious" it was to Dr Peter Woodruff, a leading vascular surgeon and expert witness, as well as two other surgeons who reviewed Patel's work, that he was far from competent.

The damning evidence of surgeon Dr Geoff de Lacy, perhaps the most important witness because of his role in treating many of Patel's patients, was accepted by Davies.

De Lacy was "staggered" by the negligence; he "looked after complications that he had never seen before" as a result of rough, botched and unwise procedures. The magnitude of Patel's errors "were not 10 times what you might expect, they're more like 100 times what you might expect".

Davies concluded: "He did not appear concerned to ensure that procedures reduced patients' suffering."

Davies ruled that Patel's dishonesty in lying to the Medical Board of Queensland about being struck off in New York State and banned in Oregon from performing certain types of surgery -- due to his repeated acts of gross negligence resulting in deaths -- meant there was also a prima facie case of fraud for his time as a well-rewarded employee of Queensland Health.

But McNabb is not the only one questioning the Queensland police strategy. Inquiry sources, too, are perplexed.

They liken the inquiry to committal proceedings in a magistrate's court; and the report of Davies to an order of there being a case to answer.

The evidence was given under oath and there have been no challenges by Patel's Brisbane-based solicitor, Damian Scattini, to its legitimacy.

A serving judge with no connection to the case said yesterday: "We have just spent $16 million on a full-blown investigation with all the evidence admitted under oath. When is it enough?"

The Davies report is a painful examination of how public hospitals in Queensland have been run on the cheap, delivering unsafe care at the expense of unwitting patients.

It was morally inexcusable, too, Davies found, that the system had discriminated against regional communities which received a less safe level of care than communities close to the big metropolitan hospitals.

The broad thrust of the Davies report goes to the failure of hospital systems to credential and privilege doctors, inadequate funding and a culture of concealment. It was inevitable that it would eventually end in disaster.

It took a dangerous overseas-trained doctor, slipping through an incompetent medical board, to be the catalyst.

The board had failed its duty of care to patients and negligently overlooked dangerous and bogus doctors for years, Davies found. Despite repeated warning signs about its inadequate screening process and the potential for public harm, the board did not tighten its process until the Patel scandal erupted.

"Any reasonable inquiry (by the board) would have revealed that Dr Patel had lied in the application about his (US) disciplinary history," Davies said. "If that had been revealed, the dishonesty alone should have persuaded the board that Dr Patel was not a suitable person for registration. The board, effectively, made no independent inquiry."

Queensland has been increasingly relying on Third World-trained doctors with inferior public health systems for several years.

Davies found the flawed way in which Queensland Health and the board operated resulted in "large numbers of overseas-trained doctors practising in this state without meeting the standards required of Australian-trained doctors".

It was all the more disturbing, he found, because Queensland Health, the board and the AMA had been aware the registration system for overseas trained doctors "was in crisis".

He said "the single most breathtaking feature of the quality control measures taken before Dr Patel's appointment" was that the inquiries into the authenticity of his qualifications were almost entirely limited to the brief work of a private recruiting firm, Wavelength Consulting, in Sydney.

But, he added, the board "still does not appear to appreciate its statutory duty" because its processes even now did not include an obligation on the board "to check directly with an applicant's last supervisor".

Hedley Thomas this week won the Walkley Award for "best news report" for his investigation into the Patel case.