Consent and Duty of Care

1. Informed Consent for Major Gynaecologic Oncology SurgeryXXVIII Australian Society of Gynaecologic OncologistsScientific Meeting5 July 2013Professor Les McCrimmonBarristerWilliam Forster Chambers Presentation to XXVIII ASGO Scientific Meeting by Prof L McCrimmon 5 July 2013

2. Consent and Duty of Care Focus of Discussion: • Standard of care • The Bolam Principle in Australia • Evidence of prevailing practice • Common law duty to warn • Therapeutic privilege • Statutory reform re diagnosis and treatment Presentation to XXVIII ASGO Scientific Meeting by Prof L McCrimmon 5 July 2013

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

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

5. The BolamPrinciple in Australia Presentation to XXVIII ASGO Scientific Meeting by Prof L McCrimmon 5 July 2013

6. Common law: Diagnosis/treatment vs Advice Rogers v Whitaker (1992) 175 CLR 479 at 489 Presentation to XXVIII ASGO Scientific Meeting by Prof L McCrimmon 5 July 2013

7. Evidence of Prevailing Practice • 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 cfNaxakis v Western General Hospital (1999) 197 CLR 269 at 276-6, 285, 297. Presentation to XXVIII ASGO Scientific Meeting by Prof L McCrimmon 5 July 2013

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

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

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

11. 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 (4thed, 2013) at 357. Presentation to XXVIII ASGO Scientific Meeting by Prof L McCrimmon 5 July 2013

12. Advice: Elements of Valid Consent Elements which enable valid consent: • Competence • Voluntariness Elements which inform valid consent: • Disclosure of information • Patient’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 (4thed, 2013) at 330 Presentation to XXVIII ASGO Scientific Meeting by Prof L McCrimmon 5 July 2013

13. Principles of Valid Consent • Clients are entitled to make their own decisions about interventions and should be given adequate information on which to base these decisions • Competence: 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 providedin 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) Presentation to XXVIII ASGO Scientific Meeting by Prof L McCrimmon 5 July 2013

14. Advice: Therapeutic Privilege • Therapeutic 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. Presentation to XXVIII ASGO Scientific Meeting by Prof L McCrimmon 5 July 2013

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

16. 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

17. Prof Les McCrimmon William Forster Chambers 26 Harry Chan Avenue · GPO Box 4369   Darwin · NT t +61 8 8982 4700  f +61 8 8941 1541 elmccrimmon@williamforster.com Presentation to XXVIII ASGO Scientific Meeting by Prof L McCrimmon 5 July 2013