Consent and Duty of Care

Informed Consent for Major Gynaecologic Oncology Surgery

XXVIII Australian Society of Gynaecologic Oncologists

Scientific Meeting

5 July 2013

Professor Les McCrimmonBarrister

William Forster Chambers

Presentation to XXVIII ASGO Scientific Meeting by Prof L McCrimmon 5 July 2013

Consent and Duty of Care

Focus of Discussion:Standard of careThe Bolam Principle in

AustraliaEvidence of prevailing practiceCommon law duty to warnTherapeutic privilegeStatutory reform re diagnosis

and treatment Presentation to XXVIII ASGO Scientific Meeting by Prof L McCrimmon 5 July 2013

Standard of Care

“The standard of reasonable care and skill required is that of the ordinary skilled person exercising and professing to have that special skill …”: Rogers v Whitaker (1992) 175 CLR 479 at 483.


The Bolam Principle Bolam Principle:

A doctor is not negligent if he or she “acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopt a different practice. In short, the law imposes the duty of care: but the standard of care is a matter of medical judgment”.

Sidaway v Governors of Bethlem Royal Hospital [1985] AC 871 at 881 (per Lord Scarman). See also Bolam v Friern Hospital Management Committee [1957] I WLR 582.


The Bolam Principle in Australia


Rogers v Whitaker (1992)

Naxis v Western General Hospital (1999)

Civil Liability Act reform (2002)

Common law: Diagnosis/treatment vs Advice

Standard of Care

Diagnosis/treatment

Patient’s contribution

limited

Provided according to

practitioner’s skill

Advice Valid Consent


Rogers v Whitaker (1992) 175 CLR 479 at 489

Prevailing medical practice will have an influential role in determining whether the diagnosis and treatment met the requisite standard of care;

However

Whether the patient has been given all the relevant information on which to give consent is not a question which depends on medical standards or practices.

See: Civil Liability Act (NSW) ss 5O, 5P, (Qld) s 22, (SA) s 41, (Tas) s 22, (WA) ss 5PB; Wrongs Act (Vic), ss 59, 60. In ACT and NT see Rogers v Whitaker (1992) 175 CLR 479 at 490; but cf Naxakis v Western General Hospital (1999) 197 CLR 269 at 276-6, 285, 297.


Evidence of Prevailing Practice

Advice: Legal Duty to Warn“[A] doctor has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it. This duty is subject to the therapeutic privilege”: Rogers v Whitaker (1992) 175 CLR 479 at 490.


However . . . The failure of the medical practitioner to warn of a risk the evidence shows the patient would have been prepared to accept will not give rise to compensation.


Wallace v Kam [2013] HCA 19 at [36]“[T]he policy that underlies requiring the exercise of reasonable care and skill in the giving of [a] warning is neither to protect [the] right to choose [whether or not to undergo treatment] nor to protect the patient from exposure to all unacceptable risks. The underlying policy is rather to protect the patient from the occurrence of physical injury the risk of which is unacceptable to the patient.”


Need to be ‘Patient Focused’Both Rogers v Whitaker and Wallace v Kam “can be interpreted as requiring that the information to patients needs to be ‘patient focused’. What information may the patient require – not what information does the practitioner think a patient needs”: Kerridge, Lowe, Stewart, Ethics and law for the health professions (4th ed, 2013) at 357.


Advice: Elements of Valid Consent


Elements which enable valid consent:Competence Voluntariness

Elements which inform valid consent:Disclosure of informationPatient’s understanding of information

Elements which enact valid consent:Decision (including specificity)Authorisation (of the chosen treatment plan)

Kerridge, Lowe, Stewart, Ethics and law for the health professions (4th ed, 2013) at 330


Principles of Valid ConsentClients are entitled to make their own decisions about interventions and

should be given adequate information on which to base these decisionsCompetence: consent is only valid if the client is competent to understand

and authorise the intervention.Adequate information on the issue and intervention options on which to

make a decision should be provided in a form appropriate to the clients circumstances, personality, expectations, fears, beliefs, values and cultural background

Voluntariness: there should be no coercion and the client is free to accept or reject the advice

Process should be a frank & honest information exchange from both parties

A continual process – clients may change their decision about interventions after commencement of the intervention

Adapted from Informed Consent for Treatment/Intervention, VHA Clinical Governance in Community Health Discussion Paper (2009)

Advice: Therapeutic PrivilegeTherapeutic privilege has been described as “an

opportunity afforded to the doctor to prove that he or she reasonably believed that disclosure of a risk would prove damaging to a patient”: Rogers v Whitaker (1992) 175 CLR 479 at 486.

Note, however, that an American case (cited with approval by the High Court in Rogers v Whitaker) held that therapeutic privilege “does not accept the paternalistic notion that the physician may remain silent simply because divulgence might prompt the patient to forego therapy the physician feels the patient needs”: Canterbury v Spence (1972) 464 F 2nd 772 at 789.


Diagnosis/Treatment: Statutory Reforms


A statutory test of standard of care relating to diagnosis and treatment has been implemented in NSW, Qld, SA, Tas, Vic, WA.

The statutory test represents a modified Bolam principle.

Statutory test – requires peer professional opinion to be widely accepted (but does not require universal acceptance) as competent professional practice in Australia.

If test is met . . . A medical practitioner does not incur liability in

negligence arising from the provision of a professional service.

Exceptions:Does not apply to duty to warn of risk;Does not apply if the court considers that the

professional opinion relied upon by the medical practitioner was irrational or unreasonable.Eg, practices that are not evidence based or ignore

clinical guidelines without justification: see C Sappideen, ‘Bolam In Australia: More Bark Than Bite’ (2010) 33 NSWLJ 386 at 423.Presentation to XXVIII ASGO Scientific Meeting by Prof L McCrimmon 5 July 2013

Prof Les McCrimmonWilliam Forster Chambers

26 Harry Chan Avenue · GPO Box 4369 Darwin · NT t +61 8 8982 4700 f +61 8 8941 1541

e [email protected]


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Consent and Duty of Care

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