VICTORIA
Information on Medical Procedures Act 1989
The Parliament of Victoria enacts as follows:
Purpose
1. The purpose of this Act is to amend the Wrongs Act 1958 and the Medical Practitioners Act 1970 in relation to the relevance, in actions against doctors or an inquiry by the Medical Board, of applicable standards or guidelines issued by the National Health and Medical Research Council.
Amendment of the Wrongs Act 1958
2. The Wrongs Act 1958 is amended by inserting after Part 11A the following Part:
"PART 11B - ACTIONS AGAINST DOCTORS BASED ON FAILURE TO PROVIDE INFORMATION
Courts must take account of National Health and Medical Research Council standards or guidelines:
14E. In an action against a medical practitioner for damages for injury based on failure to provide adequate information to a patient, a court must take into account any applicable standard or guideline issued by the National Health and Medical Research Council."
Amendment of the Medical Practitioners Act 1970
3. The Medical Practitioners Act 1970 is amended by inserting the following section:
"16(1A) In deciding whether such a failure has taken place the Board must take into account any failure by the medical practitioner, without reasonable excuse, to provide information to a patient in accordance with any applicable standard or guideline issued by the National Health and Medical Research Council."
AUSTRALIAN CAPITAL TERRITORY
Law Reform (Miscellaneous Provisions) Amendment Act 1989
No. of 1989
An Act to amend the Law Reform (Miscellaneous Provisions) Act 1955 and for related purposes.
The Legislative Assembly for The Australian Capital Territory enacts as follows:
Short title
1 . This Act may be cited as the Law Reform (Miscellaneous Provisions) Amendment Act 1989.
Amendment of the Law Reform (Miscellaneous Provisions) Act
2. The Law Reform (Miscellaneous Provisions) Act 1955 is amended by inserting after Part IV the following Part:
"PART IVA - ACTIONS FOR CERTAIN MEDICAL NEGLIGENCE
Actions for certain medical negligence
"13A. In an action against a medical practitioner for damages for injury founded on the negligent failure of the practitioner to give adequate information to a patient, the matters that the court must take into account in determining whether the information given was adequate include any applicable standard or guideline published by the National Health and Medical Research Council and notified in the Commonwealth of Australia Gazette."
Amendment of the Medical Practitioners Registration Act
3. Section 30 of the Medical Practitioners Registration Act 1930 is amended by:
(a) omitting from paragraph (5)(b) "and";
(b) Inserting after paragraph (5)(b) the following paragraph:
"(ba) failing, without reasonable excuse, to ensure that, in relation to any medical procedure or treatment, adequate information is given to a person whose consent to the procedure or treatment is necessary;"; and
(c) adding at the end the following subsection:
"(6) In determining for the purposes of paragraph 5(ba) whether information given was adequate, the matters to be taken into account include any applicable standard or guideline published by the National Health and Medical Research Council and notified in the Commonwealth of Australia Gazette".
NEW SOUTH WALES
Short title
1 . This Act may be cited as the Medical Practitioners (Informed Decisions) Amendment Act 1989.
Commencement
2. This Act commences on a day or days to be appointed by proclamation.
Amendment of Medical Practitioners Act 1938 No. 37
3. The Medical Practitioners Act 1938 is amended as set out in Schedule 1.
Schedule I - Amendments
(Sec. 3)
(1) Section 27 (Definitions) -
After paragraph (a) of the definition of 'professional misconduct' in section 27 (1), insert:
(a1) refusing1 or failing, without reasonable cause, to ensure2 that adequate information concerning medical treatment proposed to be carried out on a patient by the practitioner is provided to the person by whom consent to the treatment is to be given3;
(2) Section 52A -
After section 52, insert:
Informed decisions about medical procedures etc. - admissibility of guidelines
52A. (1) This section applies in civil or disciplinary proceedings against a medical practitioner involving the alleged refusal or failure of the practitioner to ensure adequate information concerning medical treatment proposed to be carried out by the practitioner is provided before consent to the carrying out of the treatment is given.
(2) The court or disciplinary body must (in determining whether the person was adequately informed in the circumstances) have regard to any applicable guideline or standard issued by the National Health and Medical Research Council and published in the Commonwealth of Australia Gazette and in force at the time of the alleged refusal or failure.
(3) Such guidelines or standards are accordingly admissible in evidence.4
(1) "Refusing" has been included because it is used with "failing" in another paragraph of the same subsection that prescribes grounds of professional misconduct.
(2) "Ensure" is used to cover the possibility that a practitioner may properly rely on information given by another person.
(3) Note that the information is to be given to the person by whom consent must be given, who may not necessarily be the patient. See, in particular, section 49 of the Minors (Property and Contracts) Act 1970, Part 5 of the Disability Services and Guardianship Act 1987 and Division 3 of Part 10 of the Mental Health Act 1983.
(4) This section could equally well be located in the Evidence Act 1898.
