Andrew's objection to the reasoning of Heydon J seems to be fairly easily answered. If a person undertakes the medical treatment of another, the advice given by the practitioner is an element of the treatment. There are difficulties in prosecuting for manslaughter when the negligent act comprises 'mere words', but in principle conviction is possible in such cases. There is no doubt that giving advice is an 'act' - something that the practitioner does. If that is accepted, it follows that it makes no difference whether the advice given to the patient is to do or not to do something. Think of the case of an alternative medicine practitioner who persuades their reluctant patient, against that patient's better judgement, not to go to an orthodox practitioner who will provide life saving treatment. Whatever the difficulties in prosecuting such a case, it is not an instance of prosecuting for an omission. Persuasion is something that one does.

Well, I don't think it will! The prosecution was, I believe, botched from the very start?
Those that employed and supervised Patel, had an equal duty of care; and, I believe, are equally culpable?
Even so, such a record of human tragedy cannot be simply swept under the carpet or placed in the too hard basket!
Nor should we select from a menu of possible offences, but rather each and every possibility, unless Patel cops an informal gentleman's plea bargain.
Patel was, I believe, previously stuck off in the USA, for similar incompetence, or acting above his skill level?
We here, I believe, keep our problems, if known, in-house?
And limit problem practitioners to consultative practise only; and or, the medico legal world?
Failure to comply can result in being stuck off?
Skill levels can be compromised by failing eyesight, macula degeneration, glaucoma, smoking related arterial disease, alcohol/drug dependence or addiction?
And or, possible mental health issues, in combination with any of the above?
Patel should either cop a plea and do his full time concurrently; or, be tried for each and every charge; and then serve each and every sentence consecutively?
Given sanity prevails and he pleads guilty? He could do his time very softly as a trusted "medical orderly" in a prison farm? And not the worst possible outcome!
Given the overwhelming wealth of evidence, I see no possibility of a competently conducted retrial failing, if one should proceed?
It could however, be very costly and time consuming?
Patel has little other choice but to stay and face the music; given his medical career, here or abroad, is virtually over!
I do however, see such a retrial creating even more trauma for the victims or their still surviving family members, who will once more be asked to draw deeply from their stores of courage and forbearance, in order to enter the fray once more!
Final justice demands it!
Rhrosty.

This whole matter has the stench of a "legal Aid" stunt, the solicitors "representing" Patel has raked in an enormous amount of taxpayer's money from the unregulated, unquestioned, unexamined free for all that is the corrupt rort of "legal Aid". A "truth commission"; not restricted to certain so called "terms of reference", investigation is LONG over due.

Thanks for your fine comments ASPIRIN. I quite agree that, as a matter of ordinary language, the giving of advice is an act. Also, I think your example of the alternative medicine practitioner certainly shows how the line between negligent failure to take steps and the taking of the wrong steps can become blurred. But I don’t think it follows from your example that ‘it makes no difference whether the advice given to a patient is to do or not do something’. That is to milk too much from a borderline case. Difficulties of classification in borderline cases have no implications for the clear cut cases. Consider a doctor who negligently advises a patient that surgery is not necessary when in fact it was, and the patient consequently dies. In the law, the doctor will not be prosecuted for an act causing death, but rather for an omission causing death: he failed to take the necessary steps that ought to have been taken, notwithstanding that he communicated that decision to the patient and commended it as ‘advice’. Here he will be prosecuted under a different section for his negligent failure to take the steps and conduct the surgery. It is unlikely, to my mind, that by the words 'or other lawful act which is or may be dangerous to human life' and 'in doing such act' (in s 288) parliament meant to refer to advice that surgery should not proceed. I think it is something of a stretch to believe that parliament had this scenario in mind when the provision was drafted.

I wonder what outrage would be on show had Dr Patel been an australian GP ?