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Rogers v. Whitaker and informed consent in Australia: a fair dinkum duty of disclosure.
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Has informed consent finally arrived in Australia? A comment on the law following the decision of the High Court of Australia in Rogers v. Whitaker.
A struggle is going on all over the world between medical paternalism and patient autonomy. The battlegrounds include clinics, hospitals, academic settings and the courts. The High Court has awarded the most recent round, six to nothing, to autonomy, but the fight is by no means over. The judgements, the current law in Australia, and the implications for medical practice are discussed.
From disclosure to understanding: Rogers v. Whitaker and the ethics of shared decision-making.
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High Court hands down decision in Rogers v Whitaker.
This is the first time that an issue related to the provision of medical information or advice has been argued before the High Court of Australia. As with any decision of the High Court, there will always be supporters and protagonists. However, one of the benefits of having the High Court pronounce a judgement in this area of law is that it provides the necessary guidance and consistency for all the courts in Australia to follow whenever they are asked to address issues relating to the provision of information or advice in medical negligence cases.
Rogers v Whitaker reconsidered.
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From disclosure to understanding: Rogers v. Whitaker and the ethics of shared decision-making.
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Abortion, information & the law: what every doctor needs to know.
1. Before commencing any treatment, doctors must inform patients of all material risks of the treatment (Rogers v. Whitaker, 1992). 2. It is not up to the professional judgment of doctors to decide how much information to give to patients (Rogers v. Whitaker, 1992). 3. The same duty to inform applies to abortion ("Ellen's Case," 1998). 4. GPs and counsellors who refer for abortion also have a legal duty to inform women of risks, because everyone who gives specialized or professional advice may be sued for negligence if that advice is given without due care (Evatt's Care, 1969). 5. Doctors have been inadequately informed on the medical risks of abortion, by writers seeking to present abortion as a risk-free procedure. 6. Abortion may increase the risk of cancer. 7. Abortion carries risks of injury and illness. 8. Abortion caries risks of future reproduction. 9. Abortion may have adverse psychological and psychiatric sequelae. In some women, these sequelae are severe and intractable, and may occur irrespective of a woman's personal attitudes towards abortion (Melinda Tankard Reist, Giving Sorrow Words: Women's Stories of Grief After Abortion, Sydney, Duffy & Snellgrove, 2000). 10. Women still die in Australia from abortion. 11. It has not been proved that pregnancy and delivery are more dangerous than abortion. 12. The risks of mortality and morbidity in carrying a pregnancy to term are often exaggerated, in an effort to make abortion appear safer. 13. Doctors are not required to refer for abortion. On the other hand, doctors do have a duty to inform themselves of the professional competence of any practitioner to whom they refer any patient for any procedure. Doctors who are referring for abortion can avoid legal jeopardy by informing women fully of the risks, and by keeping very comprehensive records of the information they have given. Alternatively, doctors can avoid legal liability by declining to refer for abortion. There are compelling medical reasons for treating abortion as a social, non-therapeutic, potentially harmful procedure with which conscientious doctors would choose not to involve themselves.
The defence of therapeutic privilege in Australia.
Therapeutic privilege is a defence that excuses a medical practitioner or other health professional from complying with the requirements of full disclosure to a patient in circumstances where it is reasonably considered that such disclosure would be harmful to that patient's health or welfare. Although the concept originated in the United States, the defence has been applied in Australia, and was specifically endorsed as part of Australian law by the High Court in Rogers v Whitaker (1992) 175 CLR 479. However, there has been negligible application of the defence since that endorsement. This article examines the doctrine of therapeutic privilege in the present Australian medico-legal environment. After an examination of the concept and its three constituetent elements, the article canvasses the limited instances of judicial approval of the defence prior to Rogers v Whitaker. The author then analyses, by reference to reported and unreported case law, why the defence has been so narrowly interpreted since, such that it has come to occupy an almost untenable position in Australia's medical jurisprudence.
Withdrawing treatment from patients in a persistent vegetative state.
Medical opinion was unanimous that English youth Anthony Bland was in a persistent vegetative state with no hope of improvement or recovery. His family agreed that withdrawal of life support was appropriate, but Anthony's case went to the House of Lords for clarification of the legal position before any action was taken by his doctors. The court applied the Bolam test--that a regimen is legally acceptable if supported by a body of competent medical opinion, a principle specifically rejected by the High Court of Australia in Rogers v. Whitaker.
The evolution of the doctrine of consent.
The doctrine of informed consent is evolving. It has taken different routes in different jurisdictions. However, these different paths are converging to a general consensus. The Bolam test, which has been the primary exposition of this doctrine in this country, sets the standard of care as a matter of medical judgement. However, recent cases, particularly Rogers v Whitaker, shift the perspective in favour of warning the patient of material risks inherent to proposed treatment. Whether this information is sufficient to give consent is not a question the answer to which depends upon standards of medical practice. There is no doubt that this is the evolving global trend. Whilst this might seem more onerous the doctrine is of constructive use in securing public awareness in organ donation and in the effectiveness of public health policies.
Should I warn the patient first?
In 1992 the High Court of Australia decided that health professionals owed a duty of care to warn patients of the risks to the particular patient of the proposed treatment before commencing that treatment. The Court ruled that it is not enough for any health care practitioner to do what everyone else does and therefore not warn the patient first. It emphasised that the information the law requires to be provided will vary from patient to patient, according to the individual patient's characteristics and needs. The decision in Rogers v Whitaker (1992) means that health professions must change their attitude and approach to the provision of information and warnings to patients.
Epilepsy and medical practitioner duty of care in an employment context.
A medical practitioner who consults with persons with epilepsy has imposed upon him or her a duty of care in accordance with current Australian legal authority expressed or cited in Rogers v Whitaker, but may also have such a duty imposed in a number of circumstances not involving a treating doctor relationship. The requirement for sufficient proximity in legal terms exists where the relationship is not (or is) a standard doctor-patient relationship, but once duty and proximity have been established, it is open to argument, and possibly to future judicial determination, that a higher standard of care may exist in relation to persons with epilepsy, although the law has yet to recognise differing standards. Whilst case law involving claims for damages by workers with epilepsy against medical practitioners is sparse, considerable scope appears to exist for the novel extension of the duty of care requirements of doctors in employment matters involving employees with and without epilepsy.
Consent and the individual detained in custody.
It has been acknowledged that autonomy is one of the prima facie principles in modern medical practice and integral to the interchange between doctor and patient even if that meeting does not fulfil the normal criteria for a consultation. The lead having been taken by other jurisdictions, the General Medical Council, the UK national regulatory body for doctors, has now acknowledged the concept of informed consent that was first espoused in cases such as Rogers v. Whitaker. In regard to the concept of informed consent, there are three pertinent issues that the Forensic Physician should consider in deciding upon the adequacy of this: Did that person have capacity in the eyes of the law? The Forensic Physician may be asked to examine individuals whose age span ranges from the newly born to the elderly and there will be potential conflict of interest between parent and child or elderly people and their carers. Even if adequate information was imparted, did a person under the (significant) influence of alcohol or drugs understand the likely implications that would flow from their decision? Was the individual concerned given appropriate information beforehand--in other words, was the consent truly informed? Was the consent given voluntarily? Voluntariness is probably the most significant ethical worry likely to confront the doctor, particularly when examining an individual for fitness to be detained or fitness to be interviewed, both categories of which make up the main work load in this sub-specialty. The thorny ethical dilemmas faced in this specialty are considered and how the professional standard originally defined in Hunter v Hanley and re-iterated in the Bolam test (with subsequent modification in Bolitho) affect the way in which the clinician deals with the problems is likely to face.
Consent in the 90's.
Patients consent to surgical procedures is a universal issue in medical law. The legal position in Australia, because it falls somewhere between the North American doctrine of "informed consent", and the Bolam test in the United Kingdom, will be of interest to all clinicians and legal practitioners dealing with these issues. The High Court of Australia's decision in Rogers v Whitaker (1992) 109 ALR 625 is now the leading decision regarding of consent to surgical procedures in Australia. The author draws a thumbnail sketch of the law in Australia, and discusses some loopholes in the legal structure established by the Australian High Court. The author supports the view taken by the High Court of Australia, and provides some material to contest the allegation made by clinicians that lawyers in Australia are in some way responsible to "opening the floodgates" for an increase in legal claims by patients.
Courts as communicators: can doctors learn from judges' decisions?
The role of the courts in 'communicating' with those affected by their decisions is contentious. Some legal commentators maintain that courts and legislators are able to communicate decisions effectively and that attempts to 'dumb down' the law will not make such decisions more accessible to doctors and other professionals. Justice Michael Kirby, on the other hand, seems to share the present author's view that judges could improve their communication of their decisions to a wider audience: 'In future, it seems inevitable that proceedings [of the High Court] will be broadcast live. Maybe one of the judges will explain the decisions of the court in simple terms as they are handed down ... Adaptation to new ways and values is part of the genius of our law, although some if its practitioners need to be dragged kicking and screaming to accomplish the changes' (emphasis added).(1) This article explores the position in Australia.
Malpractice liability for the failure to adequately educate patients: the Australian law of "informed consent" and its implications for American ethics committees.
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Patients' rights--why the Australian courts have rejected 'Bolam'.
This point of view compares the issue of informed patient consent primarily as it operates in Australia and the United Kingdom. It affords an overview, also, of the applicable law in the United States and Canada. It particularly focuses on the legal test to be applied to patient consent as established in the Bolam case in the United Kingdom. The case, following its approval by the House of Lords, holds that the negligent standard in patient consent situations is to be determined, in cases of dispute, in accordance with standards as viewed by a proper body of competent medical practitioners. By contrast, the law in the United States is premised on the notion of the fundamental right of patients to determine what should or should not be done with their own bodies. In Australia the Bolam test has been rejected by the High Court of Australia following earlier decisions in the State Supreme Courts. The Australian courts did not accept that the setting of standards by the medical profession was an acceptable way of determining the entitlements of a patient who has suffered harm. The author places this discussion in the context of greater community awareness of medical procedures, the heightened accountability of professionals and the increasing practice of having a substantial patient input into medical decisions. He also suggests that the differing social and professional attitudes to authority and fundamental rights to be found between Australia and the United Kingdom have influenced the outcome of the cases in the higher courts of both countries. He suggests that the Bolam test is an illustration of the tendency of authority in the United Kingdom to believe that 'Nanny know best'.