18. A failure to supply information to a patient about a proposed treatment or operation may in some cases expose a doctor to legal liability. Two main areas of the law require consideration: trespass to the person and negligence. Each is concerned with providing remedies for wrongful conduct. The question is whether a doctor’s failure to inform is such that a patient should be entitled to claim compensation because of it. The law is therefore concerned with defining a minimum acceptable level of practice. This should be kept in mind when assessing the adequacy of the law.
Failure to obtain consent: trespass
19. It is sometimes suggested that the law requires that a patient’s informed consent must be obtained before any medical treatment is carried out. This is not strictly correct. The position is that any invasive medical procedure performed without consent constitutes a trespass to the person for which damages may be claimed, unless the failure to obtain consent is justified by necessity (for example, in an emergency).1 In this context ‘consent’ means consent to the general nature and quality of the proposed procedure. The role of the law of trespass in the area of informed consent, as that term has come to be understood, is limited. Consent to a procedure will not be ineffective merely because it was obtained without disclosure of associated risks and possible alternative treatments. The courts have now accepted that the proper sanction for failure to disclose this sort of information lies in the tort of negligence.
Failure to inform: negligence
20. Failure by a doctor to disclose the risks associated with a proposed treatment and possible alternative treatments may expose the doctor to liability for damages in negligence if something goes wrong. For an action against the doctor to succeed, two things must be established:
- that the doctor’s failure to disclose the information was unreasonable; and
- that this failure was a cause of harm to the patient.
The scope of the duty of doctors to disclose information is examined below. To satisfy the second element (causation), the patient must establish that he or she would not have consented to the treatment had proper disclosure been made and that injury was suffered due to the treatment. The mere fact of treatment without informed consent will not be regarded as compensatable injury. The causation element of the cause of action will often be extremely difficult to establish in practice even when it is clear that the treatment went badly wrong and the doctor failed to warn of the risk. This is because the patient usually cannot establish that he or she would have decided against the treatment if full disclosure of the risk had been made. For this reason it has been suggested by some that patients should be compensated for medical injuries even if they are not able to prove the doctor was negligent.2
21. In the jurisdictions covered in this report, there are different rules and practices as to whether a doctor’s liability for damages for alleged negligence will be determined by a judge or a jury. In Victoria3 and New South Wales4 a jury will normally be used if either party wishes it. Juries are in fact used in a significant proportion of cases of medical negligence. On the other hand, there has never been a civil jury trial in the Australian Capital Territory, even though provision exists for it.5
22. The duty of doctors to disclose information to patients about proposed treatments can be stated quite simply. The test is whether the doctor has behaved reasonably in all the circumstances of the case. The question of reasonableness stands to be determined by the judge or jury in each case. Because the practice of medicine involves special skill, the doctor’s conduct is not judged by reference to the standard of ‘the ordinary person’. Rather, the doctor’s conduct is judged according to the standard of expertise to be expected of a medical practitioner of the class to which the defendant belongs. Greater skill might be required of a specialist than a general practitioner.
23. In areas of technical knowledge and expertise, it is necessary for expert evidence to be called so the judge or jury can understand and assess the case before them. Evidence of the common practice within a profession or industry will usually be called in order to determine whether the defendant’s conduct departed from normal standards. One area in which the law in medical negligence cases has undergone change is in determining the effect that is to be given to evidence of standard medical practice.
24. A principle was stated by Mr Justice McNair in Bolam v Friern Hospital Management Committee:
A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art ... Putting it the other way round, a doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view.6
25. Bolam lays down a test (‘the Bolam test’) by which the question of negligence is determined solely by reference to whether the conduct in issue conformed to an accepted body of medical practice, not necessarily the most commonly accepted practice. If it did conform to an accepted body of practice, the doctor cannot be held to have been negligent. Such a test would preclude a finding that a common practice is negligent, even if it quite plainly is. This is clearly unsatisfactory and would place the question of negligence in medical practice beyond the supervision of the courts. If applied to the standard of disclosure, the Bolam test would allow the paternalistic attitudes of some members of the medical profession to continue without sanction despite growing community sentiment in favour of fuller communication between doctor and patient. Mr Justice Reynolds rejected this approach in Albrighton v Royal Prince Alfred Hospital:
It is not the law that, if all or most of the medical practitioners in Sydney habitually fail to take an available precaution to avoid foreseeable risk of injury to their patients, then none can be found guilty of negligence.7
This approach has been followed in later South Australian cases, including the Full Court decision discussed below.8
26. The Commissions have given serious consideration to the need for statutory abrogation of the Bolam test. Abrogation is not recommended. The better view is that the Bolam test would not be applied by Australian courts. The proper role for evidence of professional practice was described by Mr Justice King, Chief Justice of the Supreme Court of South Australia in 1982 in F v R:
In many cases an approved professional practice as to disclosure will be decisive. But professions may adopt unreasonable practices. Practices may develop in professions, particularly as to disclosure, not because they serve the interests of the clients, but because they protect the interests or convenience of members of the profession. The court has an obligation to scrutinize professional practices to ensure that they accord with the standard of reasonableness imposed by the law. A practice as to disclosure approved and adopted by a profession or section of it may be in many cases the determining consideration as to what is reasonable. On the facts of a particular case the answer to the question whether the defendant’s conduct conformed to approved professional practice may decide the issue of negligence, and the test has been posed in such terms in a number of cases. The ultimate question, however, is not whether the defendant’s conduct accords with the practices of his profession or some part of it, but whether it conforms to the standard of reasonable care demanded by the law. That is a question for the court and the duty of deciding it cannot be delegated to any profession or group in the community.9
Determining reasonable disclosure
27. The extent of the information that doctors should give patients will depend on what is reasonable in the circumstances of each case. Although the general principles can be stated, it may not always be easy to determine exactly how the principles are to be applied in a particular case. Patients’ involvement in decision-making and the provision of information to patients have been considered in only a small number of Australian cases,10 mostly in South Australia.
28. The courts have provided some guidance in setting out some of the matters that a doctor should consider in deciding what information should be given. They include:
- the personality and temperament of the patient and the patient’s attitude;11
- the patient’s level of understanding. Doctors need not crossexamine patients exhaustively to ensure they understand and will remember the doctor’s advice but they should give information they think the patient will understand after ‘a fair appraisal of [the] patient’s intelligence and temperament and apparent understanding, made in the light of the simplicity or complexity of the recommendation [the doctor] is making’;12
- the nature of the treatment. More drastic treatment (such as major surgery) may require more information;13
- the magnitude and likelihood of the possible harm. Information about the possibility of serious harm should normally be given even if the chance of it occurring is slight.14 Similarly, information should generally be given if the potential harm is relatively slight but the risk of it occurring is great.
29. These matters should be weighed in a manner consistent with the overall purpose of disclosure:
to provide the patient with the information necessary to enable him to make informed decisions concerning his future and, in particular, whether to undergo proposed treatment.15
However, this is qualified by the overriding criterion of reasonableness. In cases of emergency it may not be reasonable to expect a doctor to give all, or possibly any, of the information that would normally be given. This is because it is assumed that the patient would have consented to necessary treatment. The courts have not defined what constitutes an emergency; in particular whether it must be threatening to the patient’s life or whether it is sufficient that there is a risk of grave physical or mental injury to the patient.16 In practice, doctors often face difficult decisions in situations which may not be life-threatening. In judging the doctor’s conduct in such circumstances, the principal question is whether the doctor’s actions accorded with what a reasonable doctor would have done in similar circumstances.
30. Again, there may be cases in which reasonable care justifies or requires withholding information from the patient. A doctor might justifiably refrain from giving information that would normally be given to a patient considering a particular treatment if he or she ‘judges on reasonable grounds that the patient’s health, physical or mental, might be seriously harmed by the information’17 or when the doctor ‘reasonably judges that [the] patient’s temperament or emotional state is such that [the patient] would be unable to make the information a basis for a rational decision.’18 Even if a patient directly requests information, a doctor’s duty to act in the patient’s best interests ‘may justify or even require an evasive or less than fully candid answer’.19 This is especially so if the question arises from a desire for reassurance rather than information. This is sometimes called therapeutic privilege.
31. The extent to which a doctor may justifiably withhold information which the doctor believes might harm the patient’s welfare is, however, strictly limited. A doctor should not lightly decide that a patient should not be fully informed.’The governing consideration is the right of every human being to make the decisions which affect his own life and welfare and to determine the risks he is willing to undertake’.20
32. The extent of disclosure required will also be governed in part by the patient’s expressed desire for information. If a patient specifically inquires about risks or requests other information, those questions should generally be answered.21 Conversely, the patient might exercise his or her autonomy by requesting not to be given information and by accepting the decision of the doctor.22 However, there may be difficulties for the doctor in deciding what minimum information should be given to a patient who wants ‘to leave it to you, doctor’. For example, if there is a choice for the patient between a lumpectomy and a mastectomy, how much information should the doctor give about the two operations? The doctor has to be sure that the patient is sufficiently informed to be able to decide to leave it to the doctor and that the patient is aware that he or she has the right to decide. This may depend partly on how well the doctor knows the patient. Is the patient refusing the information because he or she understands broadly what is proposed and does not want to know all the details, or is it rather that the patient is frightened or confused, and does not want, or feel able, even to consider what the procedure involves? If the latter is the case, the doctor should take care to ensure that the patient understands broadly what is involved.
Consent forms
33. If the patient signed a consent form stating that he or she consents to the procedure in question, that may be substantial evidence that the patient consented but it is not conclusive. Similarly, if the patient signed a consent form acknowledging that the nature, implications and risks of the proposed procedure have been explained, that may be substantial evidence that information was given, but again it is not conclusive on the question whether the information was given or was adequate.
Administrative complaints procedures
34. In both Victoria and New South Wales patients may complain about health services whether or not they have suffered an injury. In Victoria, section 16(1)(b) of the Health Services (Conciliation and Review) Act 1987 enables a person who uses or receives health services to complain to the Health Services Commissioner if a health service provider ‘has acted unreasonably in the manner of providing a health service for the user’. This has been interpreted as including the provision of adequate information and allowing the patient to participate in making health care decisions (both referred to in the preamble to the Act). The Health Services Commissioner will provide practical assistance to help the user resolve the matter with the provider. If the matter is not resolved the Commissioner will consult the relevant registration board (which is the Medical Board in the case of medical practitioners) and then decide if the complaint is suitable for conciliation, or failing that, formal investigation. Alternatively, a person may complain directly to the Medical Board. Its powers to investigate and discipline doctors are contained in the Medical Practitioners Act 1970. The Board can impose a range of penalties and has the ultimate sanction of deregistration.
35. In New South Wales, complaints about professional misconduct can be made to the Department of Health or the New South Wales Medical Board. There are various avenues for hearing complaints. Serious matters that might lead to the suspension or deregistration of a doctor are referred for a formal hearing by the Medical Tribunal. Less serious matters are referred to a Professional Standards Committee, which might simply reprimand the doctor or require the doctor to attend counselling or education courses. The Complaints Unit of the Department of Health also has a role in counselling and promoting conciliation of complaints. The flexibility of these procedures and the range of responses available make them suitable for dealing with complaints concerning failure to provide information to patients. This means that complaints can be heard, and counselling given to doctors or other action taken, before someone is injured.
36. In the Australian Capital Territory, the procedure is similar to that in New South Wales but less comprehensive. All complaints against individual doctors are referred to the Chairman of the Medical Board. Those that are considered not to be vexatious are first referred to the doctor concerned for his or her comments and then to the Board for further consideration. If the Board considers that the complaint involves negligence, the complainant is informed that the matter cannot be considered further by the Board but must be pursued in the courts. Complaints other than those involving negligence are dealt with by the Board either by a process of informal conciliation for less serious matters or by setting up a formal inquiry for matters involving professional misconduct. Proved professional misconduct may result in a reprimand, suspension or deregistration. There is no legislative guide as to what amounts to professional misconduct (except in relation to advertising). The Board’s issued notes define ‘professional misconduct’ as ‘conduct which would reasonably be regarded as disgraceful or dishonourable by his professional brethren of good repute; or serious misconduct judged according to the rules, written or unwritten, governing the profession’. The Board takes cognisance of and is largely guided by the Code of Ethics of the Australian Medical Association. It is uncertain whether a failure properly to inform a patient would be regarded as professional misconduct, having regard to the way the Australian Capital Territory legislation is applied in practice.
FOOTNOTES
1 . Some groups suggest that HIV testing without consent may be justified in the interests of health care workers or of public health. This is controversial and is not supported by the interim guidelines of the Australian Health Ministers’ Conference (March 1989) nor the National HIV/Aids Strategy Paper (August 1989).
2. This was discussed at the 1989 Australian Health Ministers’ Conference.
3. See, General Rules of Procedure in Civil Proceedings 1986 (Vic), Order 47.02; County Court Act 1958 (Vic) s67.
4. Supreme Court Act 1970 (NSW) ss86, 89(1); District Court Act 1973 (NSW) ss78, 79A.
5. Australian Capital Territory Supreme Court Act 1933 (Cth) s14.
6. [1957] 2 All ER 118.
7. (1980) 2 NSWLR, 542, 562-3.
8. Although the House of Lords recently said that the Bolam test is appropriate to decide whether a proposed operation is in a patient’s best interests: F v West Berkshire Health Authority [1989] 2 All ER 545.
9. (1983) 33 SASR 189, 194.
10. For example, F v R, n 7; Gover v State of South Australia and Perriam (1985) 39 SASR 543; Battersby v Tottman and State of South Australia (1985) 37 SASR 524; D v S (1981) 93 LS (SA) JS 405. These cases are described in the Victorian Law Reform Commission’s Discussion Paper No 7, Informed Consent to Medical Treatment, 1987, 12-16.
11. F v R, n 7, 206 (Bollen J).
12. Gover v South Australia and Perriam, n 8, 558 (Cox J).
13. F v R, n 7, 192 (King CJ).
14. Battersby v Tottman and State of South Australia, n 8, 542 (Jacobs J). Comments about the risk of death or total paralysis in Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital and Others [1985] 1 AC 871 and the Canadian cases: Reibl v Hughes (1980) 114 DLR (3d) 1; Haughian v Payne [1987] 40 CCLT 13.
15. F v R, n 7,192 (King CJ).
16. The South Australian Consent to Medical and Dental Procedures Act 1985 enables emergency medical procedures to be carried out on persons unable to consent if the doctor ‘is of the opinion that the procedure is necessary to meet imminent risk to the person’s life or health’ (s7(2)(b)(i). ‘Health’ is not further defined. Today the general consensus would include all aspects — physical and mental.
17. F v R, n 7, 193, King CJ. However, if there is only likely to be a slight risk to the patient, but the risk of an adverse reaction on the part of the patient is very high, then a doctor would not be considered negligent if he or she withheld information.
18. F v R, n 7, 193 (King CJ); Battersby v Tottman and State of South Australia, n 8, 527 (King CJ).
19. F v R, n 7, 192 (King CJ).
20. F v R, n 7, 192-3 (King CJ).
21. F v R, n 7, 192 (King CJ).
22. F v R, n 7, 193 (King CJ): ‘[A]doctor is not required to inflict on his patients information which they do not seek and do not want. Many people are prepared to place themselves in the hands of their doctors and to leave all decisions to them’.
