Background to reference

Recent changes in community and medical practice

1. During the last 20 years, there has been a gradual but significant change in the relationships between doctor and patient. Communication between doctors and patients has improved. There has been growing recognition, particularly among younger doctors, that patients should have more information about their condition, prognosis and treatment options and that patients are entitled to make decisions about their treatment.

2. Many factors have contributed to this change. One influence is the social movement towards greater community participation in decision-making. Another lies in advances in medical science and clinical practice. Procedures for the diagnosis and treatment of illness have become more complex. There is not necessarily a clear-cut choice about the most appropriate treatment. Instead, there may be a range of options, each with its advantages and disadvantages. Treatment, whether medical or surgical, and some diagnostic tests, carry risks. Consequently, there is a greater need for patients to be informed about the potential risks so that they can decide whether to undertake the test, treatment or operation. The public is now much better informed about medical diagnosis and procedures. Media publicity and discussion of medical issues is widespread. People have become more critical and questioning about their own illnesses and their doctor’s advice.

3. These changes in the community have already led to substantial changes in Government policy and legislation. In Victoria, for example, the Government’s Social Justice Strategy emphasises the need for individuals to be involved in decision-making that affects their lives. Freedom of information legislation, both Commonwealth and State, acknowledges and secures to a distinct degree the right of individuals to be given information relevant to them and to decisions that affect them. Victorian statutes such as the Health Services (Conciliation and Review) Act 1987, the Medical Treatment Act 1988 and the Health Services Act 1988 recognise that patients are entitled to be provided with information. One of the responsibilities of the Health Services Commissioner is to deal with complaints alleging lack of information. The Medical Practitioners Act 1970 is also under review. In New South Wales, legislative and administrative action has been taken with the establishment of a Complaints Unit within the Department of Health and a review in 1987 of the complaints and disciplinary provisions of the Medical Practitioners Act 1938 (NSW).

4. As the movement towards greater patient involvement in decision making has occurred, doctors have gradually changed the way in which they deal with patients. Although some doctors still believe that they should make decisions, many now give their patients more information and encourage them to decide for themselves about their treatment. However, despite this gradual change, communication problems remain between some doctors and their patients.¹ There are also differing perceptions within the medical profession about the need for information to be given and the problems associated with giving it.

Legal and practical problems

5. These problems have led to complaints and occasionally to legal action against doctors both in Australia and overseas. There have been few legal cases in Australia and patients have rarely been successful. Patients have alleged that their doctors were negligent in failing to give them adequate information about proposed medical procedures, especially about risks or possible complications involved. In one or two cases, it has even been alleged that the doctor gave so little information that the patient could not give an effective consent to the treatment or the operation in question and that there was therefore an assault on the patient. These cases have required judicial consideration of the nature and extent of information that doctors should give patients in relation to a proposed medical procedure.

Purpose and scope of this report

6. This report focuses on two major areas. The first is the legal principles determining liability of doctors on the ground of failure to give information to patients. This is an area in which doctors’ and patients’ interests and the interests of the community may have different emphases. Doctors’ interests are in ensuring that legal standards are clear and can be complied with readily; patients’ interests are in some form of redress where a particular doctor has not met the appropriate standards; the community interest is in ensuring that standards are sufficient to enable informed discussion and decision-making. This report considers whether the existing law strikes a fair balance between these interests. Also considered under this heading is the question of disciplinary actions against doctors who fail in some serious respect to meet the standard of practice expected by the community.

7. The second area concerns the ways in which the process of informing patients can be facilitated in practice. There need be no conflict between the interests of doctors and patients here. It is in the interest of both that the process of giving and receiving information is made as simple, efficient and reliable as possible. Doctors might be helped by guidelines setting out the information which should normally be given to patients who are considering a particular treatment or operation. Patients might be helped by the preparation and distribution of information sheets describing in simple terms the advantages and disadvantages of particular procedures. Where language difficulties exist, accredited interpreters could be used, whenever possible, to enhance communication.

8. This report is confined to situations where the patients are adult and are capable of making their own decisions. It does not deal with the more complex problems arising in relation to other patients, particularly children and those who are not able to make decisions for themselves by reason of some mental or physical disability. Those problems are not simply about communication. They raise legal issues about the person with whom the doctor should, or must, communicate.²

General principles underlying recommendations in this report

9. The general principles underlying the recommendations in this report are:

• Doctors should respect the right of patients to make their own decisions about medical procedures, whatever the decision may be.
• Doctors should so far as is reasonable give patients sufficient information concerning their condition to enable them to make an informed decision. This information should include options for treatment, including the likely result if the treatment is not undertaken, and any possible side-effects of treatment.
• Medical education should include communication skills and relationship skills, to enhance the ability of doctors to give appropriate and understandable information.
• The law should establish, or recognise, a standard for the giving of information which:

  - is clear and reasonable;

  - would so far as is reasonable enable patients to make an informed decision as to their treatment, having regard to perceived risks and advantages;

  - ensures that patients are given information actually requested; and

  - enables doctors to know what standard is to be met in general, even for particular conditions and for particular patients.

• The circumstances in which doctors should consciously withhold information should be limited in range. There should be only a limited class of circumstances clearly capable of justification, for example, emergency treatment.
• The consequences of failure to meet the established standard should include general liability in negligence and disciplinary action.

FOOTNOTES

1. Dr John Vallentine said that failures of communication form the basis of 30% of all medical negligence claims in Australia. (The Medical Defence Union, Sydney, opens 1,000 new litigation files each year.) Australian Doctor Weekly, 17 June 1988.

2. And see ALRC 47: Third Community Law Reform Report. Enduring Powers of Attorney (1988).