Ethics Learning Resources

Discipline of Medical Ethics, Law and Professional Practice
MEDI7131 EPP1
INTRODUCTION TO MEDICAL LAW

SUMMARY
Author
Contact
Revised
Learning Objectives
Resource Summary
Key Words
References
Malcolm Parker (SOM)

m.parker@uq.edu.au
January 2015
1. Understand the broad connections between ethics and
law, and the uncertain nature of both.
2. Understand the broad principles, structures and
categories of the Australian legal system.
3. Describe the categories of Australian law relevant to
medical practice, and the range of legal processes to
which doctors and health institutions can be subject.
Medical practice has traditionally proceeded in ignorance
of the law, although the law has always been one of
medicine's crucial contexts. In this resource session, the
origin, purposes and fundamental structures of Australian
law are enunciated, together with the areas of law of
major relevance to medicine. The distinctions between
statute and common law, and civil, criminal, disciplinary
and other areas of law, are discussed, as well as
introductory medico-legal concepts, and a precis of the
legal duties of doctors. The distinctions and relationships
between ethics and law are examined, and its uncertainty,
frequently a surprising feature of law to the uninitiated, is
emphasised.
common, criminal, tort, negligence, trespass, registration,
professional behaviour, abortion, uncertainty,
competence, duty of care
Kerridge et al. Ethics & Law for the Health Professions. (4th
Ed) Ch 4.
Stewart et al. The Australian Medico-Legal Hbook. Ch 3.
NOTE
This LR was originally prepared for students in year 1 in 2011, due to the Brisbane floods
preventing the face to face presentation of the lecture. It is simply an explanatory guide
to the lecture slides, rather than a detailed expansion of the lecture, but it may prove
useful for clarification purposes. Chapter 4 of the recommended text is a good source of
information and explanation.
INTRODUCTION
Slides 4-6: Dr Baddocs misdemeanours are summarised, followed by the legal processes
that each misdemeanour resulted in, and then a summary of these. Quite a day! Of
course, this is a device to convey the wide range of areas of the law in which doctors
may find themselves involved. It is NOT meant to convey the idea that doctors are a bad
lot!
LAW
Slides 7-8: Summary comments on law and ethics.
Slides 9-10: The nature of law in democratic states like ours, where it is one of the three
main arms of governance, with power separated amongst them in order to ensure that
each arm is checked and balanced by the others, as originally proposed by Montesquieu.
LEARNING RESOURCE: INTRODUCTION TO MEDICAL LAW
EPP 1
Slide 11: Types of law. The Kerridge and Stewart chapters give some good explanations
for these. Essentially, Australian law is positivist, with some human rights elements
(deriving from the natural law tradition) entering via human rights statutes, although
these exist only in the ACT and Victoria as yet. These statutes require, at least in a
prima facie way, that subsequent new laws observe basic human rights. Review the
lecture Introduction to Law and Human Rights here.
Slide 12: Sources of Australian law. (Not to be confused with the two broad kinds of law
as natural and positivist). The sources discussed here are the immediate sources of our
explicit and particular laws. Connections with the English common law system are
explained.
Slide 13: the core principles of the common law.
Slide 14-15: types of courts, tribunals and commissions.
Slide 16: World map showing different types of law. Note that Australia is pink, ie a
common law country, and that the pink areas on the map roughly correspond to the old
British empire, to which the English common law was exported. Because the province of
Quebec is French-speaking and derived from French migration, but is in Canada, which
was an English dominion, it has a mixture of common law and European civil law.
Slide 17-18: the words common and civil have a number of confusing usages. See
below.
LEGAL DUTIES AFFECTING DOCTORS
Slide 19: From this point on we look at specific legal duties affecting doctors.
Slide 20: The broad legal categories that are important in medicine.
Slide 21-22: Criminal law
Some examples are given here which share some features but are also distinct. Shipman
was a British GP who murdered over 200 patients. The fact that he was a doctor was, in
a sense, incidental, although it did give him great access to the people he killed without
being detected for a long time. But he was essentially a psychopath who happened also
to be a doctor. He was jailed for life as for any gross murderer (and subsequently
committed suicide in jail). But he was also permanently deregistered from medical
practice.
Michaux was a Brisbane doctor who drugged his female patients on house calls and
raped them. So this was more in the way of a medical crime. He was jailed, but has
since been released, but his medical registration was permanently erased.
Pearce is another Qld doctor who mistakenly gave a burnt infant ten times the
appropriate dose of morphine. So, according to the court, she caused the babys death,
but not intentionally. So she was found guilty of criminal negligence negligence
because it was not intentional, but criminal because the mistake was so clearly of gross
proportions. Her medical registration was suspended but not erased, and following reregistration, she continued to practise for some years. By now you will be getting a feel
for two things: the difference between intentional and negligent criminal acts, and the
fact that these different categories have different consequences for registration status.
The Patel case is interesting as it, like Pearce was one of manslaughter, or unlawful
killing, where the doctor did not intend to kill his patients, but where gross incompetence
resulted in death or serious harm. S288 of the criminal code requires the exercise of
reasonable skill, and Pearce and Patel clearly failed this test. But in Patels case, it was
EPP 1
argued successfully that his failure was not in the execution of the surgery, but in his
diagnostic and advisory roles, since he advised people to have surgery which was
beyond him, or he had previously been barred from performing, or which ought not have
been carried out in Bundaberg. Note that the consent of the patients to the surgery did
not extinguish his responsibilities.
Slide 23: There are various kinds of actions which doctors must avoid on pain of
transgressing the criminal law. Note that altruistic surrogacy was, but no longer is a
crime in Qld. Note also that defrauding Medicare is a crime. Unlawful abortion is a crime,
and in next semesters course, we will discuss the complex ethics and law concerning
abortion.
Slide 24: Actions in criminal law are brought by the state, not individuals, and the
standard of proof is beyond reasonable doubt. Both these elements reflect the
seriousness of crimes, and the seriousness of their punishments.
Slide 25-27: Regulatory or Disciplinary law
These essentially summarise material covered in the forthcoming Professionalism and
Accountability lecture. You can see, again, how different categories of law intersect.
Slide 28-29: Public law and Human rights / Administrative law
These are crucial areas, but involve institutions more than individuals; we do not look at
them in detail now.
Slide 30-35: Civil law
Recall that civil law was contrasted with common law in terms of worldwide systems,
with the European civil law contrasting with the English common law. But we also refer
to a broad area of law, within our common law system, as civil law, as distinct especially
from the criminal law. So whereas criminal law actions are brought by the state in
response to serious, harmful events, the civil law is an area that addresses grievances
between individuals - civilians (This can include institutions, corporations, and
governments, which are regarded as legal individuals. For example, I may sue the
government for negligence; when I do, I and the government are acting as legal
individuals). For medicine, the primary areas of concern are the laws of contract and
tort.
In the Kerridge chapter, there is considerable discussion of contract, but because there
are very few contracts written between doctors and patients, and even though there is
an implied contract between doctor and patient in every interaction, it does not figure
frequently in law suits involving doctors. Nor do fiduciary duties which are applied by the
law of equity; indeed there have been no cases brought and decided on primarily in
terms of doctors fiduciary duties to patients.
The legal suit of major interest is that of negligence, which, as you will see from the
subsequent Duty of Care lecture, is the one that is brought by patients who believe they
have been harmed by a failure of the doctor to observe the required standard of care in
any one of the various categories where is a legal duty of care exists. Another tort (civil
wrong) is trespass. This is a far less frequent action, and we look at the difference
between negligence and trespass more closely later.
Slide 36: Uncertainty. These examples demonstrate that the law, which attempts to
prescribe action in relation to all of them, cannot give explicit instruction for every case
that arises, just as a code of ethics is constrained to providing general guidance. The
prescriptions in both areas are subject to interpretation, deliberation, negotiation and
judgment.
Slide 37: With apologies to the lawyers!
MEDI7131 EPP 1
AUTONOMY, PATERNALISM, COMPETENCE, INTERVENTION, REGULATION

SUMMARY
Author
Contact
Revised
Learning
Objectives
Resource
Summary
Key Words
References
Malcolm Parker (School of Medicine)

m.parker@uq.edu.au
February 2015
1. Discuss the relationships between psychological and moral autonomy
2. Define the related concepts of autonomy, competence, best interests
and paternalism
3. Outline the ethical and legal limitations and obligations of practitioners in
dealing with mental illness and self-harm (introduction only)
a) What is the law regarding involuntary admission of patients (both adults
and minors)? (introduction only)
b) What are the ethical issues associated with interventions to prevent selfharming behaviour?
This resource illustrates how ethical and psychological issues are deeply
intertwined. It introduces conceptual and applied aspects of autonomy,
competence, consent, refusal, paternalism, medical interventions and
limitations, and mental health regulation (introduction only). Do we have the
ethical and legal right to force treatment upon someone, even if the patient
has an apparently false belief, which may lead to her death? The case
introduces many aspects of the doctor-patient relationship which may
conflict in difficult cases as well as the more everyday ones. The lecture
uses case examples to explore these issues, connecting them to the
cognitive, psychological and ethical concepts & principles involved. The
lecture and the LR should allow you to reflect about the issues and
generalise to a broad range of situations. There are also obvious links to
the L on assessing competence.
autonomy paternalism competence doctor-patient relationship diagnosis
consent refusal mental illness involuntary treatment
1. Kerridge et al (recommended text) Chapters 7, 16 (4th ed).
NB You do not need to read all the following references !!! They
provide a range of further reading which those interested can follow
up.
2. Quill T & Brody H, Physician Recommendations and Patient Autonomy:
Finding a Balance between Physician Power and Patient Choice, Annals of
Internal Medicine, 1996; 125: 763-769. (Critiques the deficiencies of
absolute views of the doctor-patient relationship, and describes the recent
history of change in the relationship).
3. Hawkins J & Emanuel E. Clarifying Confusions about Coercion.
Hastings Center Report, 2005; 35(5): 16-19. (Very clear explanation of the
concept of coercion, and the differences between coercion and other
influences).
4. Barilan Y & Weintraub M. Persuasion as Respect for Persons: An
Alternative View of Autonomy and of the Limits of Discourse. J of Med &
Philosophy, 2001; 26: 13-33. (A longer and somewhat more philosophical
argument for a duty to persuade patients to accept medical advice).
LEARNING RESOURCE: AUTONOMY, PATERNALISM, COMPETENCE, INTERVENTION, REGULATION
MEDI7131 EPP 1
NOTE
This LR was originally based on a PBL case of anorexia. It retains some references
to and material concerning anorexia, as a clinical illustration of the concepts under
discussion this week, and also because we introduce some aspects of legal
intervention/mental health.
INTRODUCTION
This quotation from the twentieth century British philosopher Isaiah Berlin, nicely
captures the core idea of personal autonomy:
I wish my life and decisions to depend on myself, not on external forces of whatever
kind. I wish to be the instrument of my own, not of other mens acts of will. I wish to
be a subject, not an object; to be moved by reasons, by conscious purposes, which
are my own, not by causes which affect me, as it were, from outside. I wish to be
somebody, not nobody, a doer deciding, not being decided for, self-directed and
not acted on by external nature or by other men as if I were a thing, or an animal, or
a slave incapable of playing a human role, that is, of conceiving goals and policies of
my own and realizing them.I wish, above all, to be conscious of myself as a
thinking, active being, bearing responsibility for my choices and able to explain them
by reference to my own ideas and purposes.
[From Jeremy Holmes and Richard Lindley. The Values of Psychotherapy]
This resource should help you to consider and debate some aspects of the doctorpatient relationship, how that relationship has developed historically, and how it fits
within social frameworks including the law and the codes which inform the practice of
the profession.
The resource is an opportunity to reflect on some of the concepts and issues
covered in the lecture and the lecture on assessing competence, and to begin to
generalise these. The recommended text reference can help you to familiarise
yourself with the relevant concepts. The other references are certainly not required
reading but provide further exploration of the area. The aspects of legal intervention
in the mental health area covered here are introductory only. Later in this semester,
the concepts of autonomy, respect and paternalism discussed here will be built upon
in considering issues of consent to and refusal of medical treatment, and more
detailed attention will be paid to mental illness and the ethical and legal aspects of
psychiatric diagnosis and involuntary treatment in year 2.
With the help of this resource & references, in conjunction with the lecture, you
should be able to
1. explain the relationships between psychological autonomy or competence, and
moral autonomy;
2. understand the concepts of, and connections between, rationality, competence,
autonomy and paternalism;
3. appreciate the ways in which the duty to benefit patients (the principle of
beneficence) can sometimes conflict with the duty to respect their autonomy and
values, but also why persuading patients to accept medical advice is not
MEDI7131 EPP 1
necessarily paternalistic, but depends on patient autonomy and can be seen to

respect it;
4. understand, in broad outline, the principles of lawful involuntary treatment of
patients afflicted by mental illness;
5. begin to critically appraise recent historical changes in the doctor-patient
relationship, in the context of broader social changes.
DONT PANIC !!
These are all introductory objectives, and the sorts of accounts you are able to give
now will be built upon through this year, throughout the EPP courses and throughout
the program, as you revisit the doctor-patient relationship and related topics on a
number of occasions.
NB the objective now is NOT to know the details of the Mental Health Act !!
Note also that the questions below are intended to prompt your thinking. Some
students ask Well what are the answers to all these questions you are asking? but
at present they are designed simply to encourage you to make some links between
your own experiences (eg as ordinary citizens, as patients etc) and how you
currently understand medical practice.
MEDICAL POWER
Ethics has a lot to do with the exercise of power, and with how we treat other beings
(human and animal) and things (the environment).
Think of the many ways in which we exercise power in our dealings with other
human beings and other animals.
What are the different meanings of power?
Think of different verbs which are ways of influencing others, like suggest,
persuade, authorise, coerce, compel, dominate, force.
What do these each mean, and how do they differ?

Are they examples of the application of power? Or does this seem too strong in
some cases or too weak in others?
What feelings, and what ethical connotations, do each of these words raise for
you?
Now try and recall some of the ways in which power was exercised by different
individuals in your previous courses (including staff and other students), or in other
settings, eg school, church, clubs, social relationships etc.
Can you recall both legitimate and illegitimate uses of power in these
experiences? What was it about them which made them seem legitimate or
illegitimate?
What ethical observations can you make about these uses, or abuses, or power?
(You might here consider concepts and issues of justification, harm and virtue).
MEDI7131 EPP 1
Now consider medical practice

1. In what ways do you think power can be exercised in medicine? Can you think of
some legitimate and some illegitimate ways yet?
2. What is it for a doctor to make a diagnosis? Try and think of the different
processes that are happening, and try and describe the process of diagnosing
from the point of view of different people or groups. Is the making of a diagnosis
an exercise of power in any sense?
3. Are there differences between psychiatric and other kinds of diagnosis, and if so,
what do they consist of? Are there any ethical implications of these differences?
AUTONOMY
Now think of the potential dilemma for those attempting to help patients in cases
where there is some disagreement. There can be conflict in perceptions concerning
the patients best interests, between doctor and patient at times. Whose perception
is right, and why?
We have already looked at autonomy as a crucial, some would say overrated,
principle of biomedical ethics in previous lectures. In our society, self-determination
or personal autonomy is strongly valued and protected. We think of people as
being self-determining, if they can comprehend situations, deliberate about action in
terms of their desires and beliefs, choose a course of action, and then act
accordingly and account for their choices. We commonly say that such people are
competent, sometimes that they are rational decision-makers, or that they are
responsible, or that they are autonomous. Sometimes we might also say that they
are free, in the sense that with freedom goes responsibility and vice versa. If a
person is not in some important sense free to make her own decisions, then we do
not hold her responsible for them. We cannot be held responsible for decisions that
affect us but that we had no choice about.
The eighteenth century German philosopher Immanuel Kant was a great champion
of the idea and importance of autonomy. For Kant, human beings had the capacity,
not only to act in order to achieve their goals and desires, but to impose upon
themselves rules or laws of morality, which he considered must be based in reason.
According to Kant, these abilities were amongst the defining properties of human
beings, and he thought that it followed that each person should be treated as an end
in itself (ie himself or herself), rather than as an object (see also Berlin quote
above). Kant implored us to always act so that we could simultaneously will that the
principle of our action could become a universal law - this is a rather complicated
way of saying that Kant thought we should treat others as we would want ourselves
to be treated the golden rule. Kant has come in for a lot of criticism from
subsequent philosophers, but his ideas capture some central themes concerning the
self and self-determination with which we remain familiar, and of course, as we have
seen, with ethics.
[As it happens, that thought that each person should be treated as an end in
himself or herself, rather than as an object - is a nice way to capture one of the
central features about medical practice and the philosophy of medicine: on the one
hand, we apply our knowledge of bodies (and minds) as objects, in order to help
MEDI7131 EPP 1
people, who are somehow more than objects; they are persons, or ends in
themselves, with freedom (eg to refuse treatment) and responsibility. Think of what
this makes medicine, in contrast to veterinary science, at least in direct regard to the
animals that veterinarians treat].
Do the highlighted terms three paragraphs above all mean exactly the same thing?
If not, what are the relations between these terms? For example, is a competent
person always free? Perhaps this depends on the meaning we give to the idea of
freedom freedom from or freedom to. Is a competent person always responsible?
Perhaps not, but maybe someone we think of as responsible must be competent.
And so on. Think about what the terms share in meaning, but also what makes them
distinct.
A patient may be competent in some technical sense, but what if her aims go against
what others strongly consider is in her best interests? Maybe at times some
psychological mechanisms produce conflict amongst a person's beliefs and desires,
so as to threaten his/her autonomy. In some cases it is a matter of a difference of
opinion about best interests, based on differences in certain facts, or on differences
in fundamental values.
Is it still possible for an individual, even in a society which strongly values
individuality, to somehow be mistaken about his or her values? If it were possible to
be mistaken, this would depend on our values somehow being able to be objectively
judged, and many people would think this is impossible, by rejecting the idea of there
being any source of objective values. This is consistent with the democratic idea of
maximising freedom in order that people may live the lives of their choosing. Of
course, others will identify a source of values which they will claim to be objective, ie
true for everybody. Recall from earlier lectures the different claimed sources of
values. What do you think of these claims? Are some better grounded than others?
Perhaps we sometimes express preferences which conflict with our deeper values,
without being aware of the inconsistency. For example, I might refuse to have a
vaccination because I am afraid of fainting from the needle, but I also continue to
want to protect myself from disease when I travel. I have to somehow reconcile and
make a decision concerning these two conflicting positions.
Think about the following questions.
1. Do different kinds of illnesses affect autonomy in different ways or to different
degrees? (See Anorexia, Autonomy & Control, below)
2. Is autonomy less important in the context of some kinds of illnesses?
3. Can we sometimes over-value autonomy, to the detriment of patients?
4. How might patient autonomy conflict with a doctor's legal duty of care?
5. What is the difference between (1) a patient's best medical / health interests, and
(2) her best interests, all things considered?
NB
Again, these are not questions to which you need to have answers now. They are
simply aimed at helping you to think about the concepts being discussed, and
encouraging you to discuss them with your colleagues.
MEDI7131 EPP 1
PATERNALISM, COERCION AND PERSUASION

It is crucial to be clear about exactly what it is we are discussing when we use these
terms. Consider paternalism, frequently encountered when we discuss autonomy. It
is good to remember that, while the term paternalism is derived from the parentchild relation (check the dictionary), the parent-child relation is not the same as the
idea of a paternalistic relationship in medicine.
Paternalism, particularly in medical contexts, is about
imposing my conception of what I think is in your interests,
based on my genuine belief that you will benefit,
even though you are competent to choose, ie autonomous (unlike the child in
the parent-child relation).
Interventions in the interests of those who are not competent, on this definition, are
therefore not instances of paternalism, although some describe such interventions as
cases of "weak paternalism". (Think of providing seat belts for small children, in
contrast to requiring competent adults to use them: these are respectively weak and
strong, or soft and hard, types of paternalism). Although the word is derived from the
parent-child relationship, we are not being paternalistic when we put a seat-belt on a
child, because the child is not autonomous. But we would be being paternalistic if we
insisted that a competent adult, who does not wish to wear a seat-belt, did so, out of
genuine concern for his safety. But be careful! If wearing a seat-belt while driving
was shown to reduce accidents, then enforcing drivers to wear belts would, at least
in part, then be justified by the interests of others in the car and others on the road,
so this part of the justification would not be a paternalistic one.
What makes things difficult for any health practitioner wanting to help the patient who
resists what the health practitioner thinks is in his/her best interests, is the question
of competence. If someone is competent, shouldnt they remain at liberty to
determine what they do?
Consider, in the context of anorexia nervosa - which is described medically as an
eating disorder characterized by food restriction, considerable weight loss, unusual
eating habits or rituals, obsession with weight and figure control and a distorted body
self-perception 1. Does an anorexic patients beliefs and apparent denials of having any kind of
illness constitute a mental illness which calls for intervention in the service of a
medical duty of care, or is her situation more of a lifestyle choice, which should
be respected on grounds of individualism, liberty and autonomy? (Note here the
connections with the previous concerns regarding diagnosis and power).
2. Just what is the scope of mental illness?
3. Does having a mental illness automatically mean the person is not competent?
4. Are there ethical and legal rights to refuse medical treatment? If so, what
conditions need to be satisfied, in order to respect the refusal?
MEDI7131 EPP 1
5. What principles and requirements should underpin a medical obligation to

intervene in someone's interests? For example, is the judgement that someone is
mentally ill by itself sufficient to ethically and legally justify intervention, including
involuntary admission to hospital?
(Again, these are questions aimed at stimulating your thoughts, to encourage you to
become familiar with the concepts being used, and to encourage you to try and get
your thoughts into a roughly coherent order. They are expanded on at later points in
the program).
Think again of those different terms for how we can influence others: suggest,
persuade, authorise, coerce, compel, dominate, force. Is it legitimate to try to
persuade someone to take a particular course of action, which I think they should,
because it is in their interests, or is this an example of unjustified paternalism?
The increasing dominance of autonomy as a principle of medical ethics and practice
arose as part of the general assertion of individual rights through the second half of
the twentieth century, and more specifically as a result of unethical clinical research
practices dating from before World War 2, coming to a peak during the war, and also
subsequently. This ascendancy of autonomy, especially in its contractual form, has
tended to suggest that the doctor patient relationship is analogous to a commercial
one, defined essentially by patients having a choice from options made available by
the doctor. However, this tends to leave the duty to do good for patients (the medical
principle of beneficence) somewhat out of the picture. We generally accept that the
doctor-patient relationship is different from a purely commercial transaction, eg the
shopkeeper does not have a duty to benefit the consumer, beyond the normal
commercial expectations. Some people will contest this, of course, or argue that the
doctor-patient relationship ought to approximate the commercial model (more on this
in year 2).
While it is generally agreed to be wrong to coerce a patient into a particular
treatment, or to dominate the process by which medical decisions are made, some
people might believe that persuading a patient to a particular course of action is also
ethically wrong. However, to persuade somebody, or to be persuaded, requires
competence and autonomy, since it is the result of a rational dialogue between two
people, and this is a process which recognises and respects each one as
autonomous. Rationally persuading somebody to believe or to do something,
assuming that we observe the proper boundaries and rules of the process, therefore
does not amount to paternalism, either strong or weak. Legitimate persuasion
implies respect for autonomy, and is a proper aspect of medical professionalism.
Remember that because persuasion is an autonomy-respecting process, no
sanctions can be applied if the competent patient does not agree or refuses to
accept the view which the doctor is supporting (as long as all relevant information is
conveyed). Once sanctions are applied or even threatened, we have moved from
persuasion to coercion or compulsion.
But note also that, on this account of how persons can be respected, the conflict
between the principles of autonomy and beneficence is reduced, because we are
trying to persuade the patient to autonomously come round to our view of what is in
their best interests. Clearly, the limits to these processes of rational persuasion
MEDI7131 EPP 1
must be clearly in view and strictly observed; moreover, many patients are more
vulnerable than usual due to their illness state, even though from a technical point of
view, they remain competent, and the boundary of rational persuasion becomes
more fragile, requiring continuing vigilance and self-awareness on the part of the
doctor.
(See refs 3 & 4)
COMPETENCE / CAPACITY
We suggested above that people are considered to be self-determining, or
autonomous, if they can comprehend situations, deliberate about action in terms of
their desires and beliefs, choose a course of action, and then act and account for
their choices. We say that such people are competent. In clinical practice, we usually
do not consciously ask ourselves whether the patient is competent, because usually
there is nothing which raises the question in our minds; we assume that everyone is
competent, unless there is a feature about them or their decisions which puts their
competence in question. This situation is reflected in the law, which obliges us to
presume that patients are competent, and places the onus on the doctor to show
that a patient is not competent, rather than on the patient to show that s/he is
competent.
We will apply ideas of competence later in the program, in relation to refusal of
treatment, substitute decision-making, advance care planning etc. Here, we will
conceptualise competence (or decision-making capacity) as the ability to
a. receive, comprehend, retain and recall relevant information;
b. integrate the information received;
c. evaluate the benefits and risks of acting or not acting in the context of ones own
values and goals;
d. select an option and give reasons for the choice;
e. communicate their choice to others (somehow);
f. persevere with that choice, at least, until the decision is acted upon.
Using these elements as constituting the conceptual core of capacity, a helpful
practical capacity assessment process is the Six Step Process of Prof Peteris
Darvins & colleagues of Monash University:
SIX STEP CAPACITY ASSESSMENT
Step 1 ensure a valid trigger is present
An event that puts either the person being assessed or others at risk, and
also, on the face of it, calls the persons capacity into question.
Must cross a high threshold before embarking on a capacity assessment remember the presumption of capacity.
Step 2 engage those being assessed
Inform them of the capacity assessment process, obtain their assent if
possible.
MEDI7131 EPP 1
Step 3 information gathering

From person being assessed.
Collateral information (from the person(s) alleging incapacity and from other
key informants).
Need to know:
o the trigger (the problem);
o the relevant choices;
o the reasonably foreseeable consequences of particular choices;
o any evidence of delusions that are related to the trigger;
o the evidence of cognitive impairment.
Step 4 education
Provide opportunity to learn the needed information.
Step 5 capacity assessment
Look for evidence of incapacity
o does not know the problem / trigger
o does not know the choices
o does not appreciate the reasonably foreseeable consequences of
choices
o decision-making based on a delusional construct.
If fail to find evidence of incapacity let the presumption of capacity stand.
If find positive evidence of capacity this strongly refutes possibility of
incapacity.
Record the evidence you observe.
Step 6 act on results of assessment
If found to lack capacity, find a valid surrogate decision-maker.
If capacity confirmed, consider the need for help with problem solving for the
trigger to the assessment and emotional support for the trauma of the
assessment.
(From Darzins P, Molloy DW & Strang D. (Eds) Who Can Decide? the six step capacity
assessment process. p150).
[These steps are considered further in the L on Assessing Competence].

ANOREXIA, AUTONOMY AND CONTROL
The previous version of this weeks PBL case involved a young female patient with a
possible diagnosis of anorexia nervosa. The patients mother is worried that her
daughter will develop this problem as a result of crash-dieting. The problem of
anorexia is useful for further discussion of the issues of autonomy, competence and
paternalism as they are linked with the management of mental disorders.
While the aetiology of the eating disorders is unresolved and extremely complex,
including genetic factors, family environments etc, sufferers frequently exhibit traits
including those mentioned above, and in addition -
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Disturbance of body image, perfectionism, obsessionalism, selfconsciousness;

Withholding of feelings, social withdrawal, avoidance of risks, fear of failure;
and
Sensitivity to rejection, low self-esteem, requirement for approval.
Many sufferers are thought to behave as they do in order to establish a measure of

control in their lives. Control of their eating and body habitus may allay anxieties
related to lack of control of a more general kind. The fact that anorexia occurs
predominantly in the adolescent/young adult age group suggests that it might be a
strategy for coping with some of the developmental milestones of this period,
including the development of independence, separation from the family, and
establishing individual identity. The desire to take on more responsibility is normal
and expected, but these achievements are never won without fear and anxiety. It
makes sense that this will be more difficult for people from families where the
interpersonal environment has been controlling, over-protective, devoid of emotional
expression, negative towards childrens individual needs etc, because there will have
been little or no graduated individuation which has prepared them for a world of
interpersonal connection and its attendant risks and losses. (These factors occur to a
variable extent in the families of sufferers, and should not be understood as agreed
causes).
Consider again the meaning of autonomy. My dictionary states right of self-rule.
This was originally a right conferred on smaller cities in the ancient world by national
administrations, and while retaining its political connotation, it also has a derived
personal application with which you should by now have become familiar.
Now look at the traits listed above as characterising anorexia. Many bear a
relationship to the self. We have suggested that the eating disorders are
characterised by an attempt to establish control. Self-rule and self-control mean
much the same thing. Are there degrees of control? Are there pathological degrees
of control? Perhaps you know someone or have heard of someone described as a
control freak. Think about the extent to which their controlling patterns are a matter
of choice. Perhaps you know someone who is obsessional. A measure of control is
good, but very obsessional people seem to be controlled by control; they have no
freedom or carefree moment to balance that unremitting control.
As stated previously, freedom and choice imply the notion of responsibility. What
emerges is the paradox that people with an eating disorder appear to utilise various
controlling strategies compulsively to allay anxieties and maintain self-esteem, but
such strategies also prevent them from establishing normal social relationships.
Adult autonomy is characterised in part by a balance between independence /
responsibility and the inter-dependence that characterises social relations. Those
with eating disorders are compelled to maintain a severe, unbalanced independence,
and so cannot progress to that mature, balanced position. They are arguably lacking
in personal autonomy of the mature type, despite appearances (and their own
beliefs) to the contrary. This of course is a matter of degree.
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FROM PERSUASION TO INTERVENTION

These considerations suggest that making a diagnosis in these areas that seem to
involve control mechanisms appears to be about diagnosing a disorder of autonomy,
or a disorder of the self. This is clearly quite different from making a diagnosis of
heart failure or arthritis; these are diagnoses of conditions that happen to the self or
person. And it is surely puzzling, especially when the patient appears to be so in
control. But rigid control resists encouragement and persuasion towards help, and as
problems escalate, denial and resistance on the part of the patient can increase.
More clearly physical and more directly threatening symptoms and signs may
develop, at which point ethical and legal considerations of necessity may arise,
especially when physical effects interfere with cognition, and finally when clinical
(life-threatening) emergencies arise, such as severe electrolyte imbalances, in
advanced cases of anorexia.
In these more extreme contexts, the ethical and legal questions become somewhat
more straightforward there is general agreement that in the emergency situation
we should treat the patient, without consent if necessary. Prior to reaching this stage,
however, the difficult issue is whether one is dealing with a patient with a mental
illness, and whether one can enforce treatment, in the best interests of the patient,
according to the provisions of the Mental Health Act, if they are not rationally
persuaded to obtain treatment voluntarily.
This is an extremely difficult and controversial issue. On the one hand, most people
with apparent eating disorders are technically competent, ie they understand the
nature of proposed treatment, its risks and so on, and so should arguably be
respected as self-determining citizens, capable of deciding for themselves, and
deserving to have their decisions, including refusal of treatment, respected. On the
other hand, they appear to be in need of medical assistance to prevent deterioration
and to enable them to develop their lives to the full. These observations and
attributions clearly pull in opposite directions. There appears to be a continuum along
which it becomes more reasonable to diagnose a mental illness with greater severity
of symptoms or threat of deterioration, but prior to which help will be more effective.
But at the earlier stage, offered help may appear to the patient as a controlling
authoritarianism on the part of the doctor, risking the re-enactment of previous family
dynamics, resulting in further withdrawal from the helping process.
The details concerning the assessment and treatment criteria under the Mental
Health Act 2000 (Qld), which go some way to helping in these decisions, will be dealt
with in year 2, but are summarised in the lecture. Anorexia and other eating
disorders are certainly classified as mental disorders, which can come under the
provisions of this legislation, such that in certain cases, patients may be involuntarily
treated.
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LINKS
The lectures and this resource describe some basic concepts and relationships
which you will find applied in many resources within the EPP courses, including the
following:
Year 1
Consent to and refusal of treatment
Informed decision-making
Concepts of disease
Self-induced disease
Confidentiality
Consent for minors
Advance care planning
End-of-life decision-making
Year 2
Substitute decision-making and advance health directives
Psychiatric diagnosis
Psychosis & Involuntary Treatment
You should also begin to observe how important these concepts are in clinical
settings, and how frequently they become factors in medical decision-making, as you
become increasingly involved in clinical work.
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THE DUTY OF CARE

SUMMARY
Author
Contact
Revised
Learning
Objectives
Resource
Summary
Key Words
References
Malcolm Parker (SOM)

m.parker@uq.edu.au
February 2015
Explain how basic ethical concepts including sympathy, compassion,
care, need, harm, autonomy, beneficence, consent & necessity form
the basis of the medical duty of care.
Explain the fundamental legal concepts of the duty of care, the
standard of care & negligence.
Explain the changing scope of the duty of care, using examples such
as the duty of care in emergencies.
This session introduces the duty of care concept as it applies to
medical practice. While medicine is motivated to respond to basic
human needs from sympathy and compassion, (the motivations of the
biblical figure of the Good Samaritan), its activities are also formalised
in professional and legal conceptions of duty. Concepts such as
medical necessity and beneficence, autonomy and consent, duty of
care, standards of care and, in an introductory way, negligence,
liability and litigation are discussed. The basic law concerning medical
emergencies is examined. The obligations of students qua students is
discussed and contrasted with their future obligations as practitioners,
to illustrate (a) their assuming the responsibilities of a new role, and
(b) the variation in legally expected standards of care. The emergency
situation serves as an illustration of the ever-changing scope of the
legal duty of care.
duty of care, emergency, proximity, foreseeability, standard of care,
torts, negligence, litigation
1. Kerridge et al, Ethics & Law for the Health Professions, 4th ed
2013, Federation Press, Ch 10 (185-205).
2. Stewart et al. The Australian Medico-Legal Handbook. 2008.
Elsevier. Ch 4.
3. Civil Liability Act 2003 (Qld) at
http://www.legislation.qld.gov.au/Acts_SLs/Acts_SL_C.htm
4. Medical Board of Australia. Good Medical Practice: A Code of
Conduct for Doctors in Australia. Available at
http://www.medicalboard.gov.au/Codes-Guidelines-Policies.aspx
5. Law Reform Act 1995 (Qld) s16. Available at

http://www.legislation.qld.gov.au/Acts_SLs/Acts_SL_L.htm
6. Mitchell EW. The ethics of passer-by diagnosis. (2008) 371
Lancet 85-87.
LEARNING RESOURCE: THE DUTY OF CARE
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INTRODUCTION
This resource supports the lecture on the duty of care. It covers quite a wide
territory, and may appear to be a lot to digest at this early stage of the course. But it
is designed to introduce some concepts which you will revisit a number of times
throughout the program. The material covered in the lecture is expanded and
explained in this resource. If you have questions about this resource or any of the
subsequent ones, do not hesitate to contact your lecturers.
As outlined at Orientation and in the Introduction to Courses, one of your tasks is to
make links between the different occasions on which you strike a particular issue,
within the CBL cases where this occurs, and in the context of practice situations. This
resource and the lecture also introduce you to a second model which we use for EPP
issues, and that is to consider the ethical aspects of an issue, and its legal aspects,
and try to see the relationships between these two aspects, the extent to which they
are similar or different, and why. Recall that we have indicated that the
recommended text (Kerridge) follows this pattern in most chapters, where ethical
and legal aspects are considered for each topic. When you read these chapters, try
and remain critically aware of the overlaps between the ethical and legal treatments,
and why for some areas the law may appear to be more comprehensive and/or
dogmatic than what the section on ethics says. A final recommendation: always keep
a hard copy dictionary or a web-link (eg Meriam Webster on-line dictionary:
http://www.merriam-webster.com/) handy. If there is a word you are not sure or
clear about look it up. In many cases, the dictionary definition will provide the
clarity you are seeking.
BLOOD ON THE ROAD
The CBL case The ABCs of Medicine was previously titled Blood on the Road. It
deliberately presents a dramatic scene which confronts you with a number of
challenges and questions. In response to a fellow human being apparently suffering
from an acute, life-threatening problem, most people will feel the urge to do
something to help, since not helping could mean the death of the person in trouble.
On this basis there is at least a prima facie ethical obligation to do something. In
other words, most people feel that they ought to stop and help, out of human
sympathy, fellow-feeling, or perhaps the idea of the Golden Rule: What if it were me
wouldnt it be good if someone tried to help me, so shouldnt I do something
here? Many people, of course, would feel that this is not really a moral matter at all,
in the sense that because they would feel that they want to help, or feel
automatically motivated, even inwardly compelled, to help, the idea that there is
some duty or moral obligation to help could seem somewhat excessive. Why would
any sort of obligation need to be imposed in relation to something that I am going to
do anyway?
This is an example of the age-old contest between different theories about ethics,
which we encountered briefly in the introductory lecture. Duty-based theories would
say that there is an ethical duty or obligation to help the injured person, and that
this has nothing to do whatsoever with wanting to do so. Indeed, the Kantian ethicist
would say that if you really desire to help, then it is not a matter of ethics at all. By
contrast, the naturalistic ethicist will deride this position as so much rigid nonsense,
and say Of course we want to help, but we are also morally obliged to do so. On
this theory, moral obligation and what we desire to do are not mutually exclusive.
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But you must also consider the fact that now you are a medical student. Does this
change things at all? Would the community expect you to be better able than
someone else to help the person in trouble? Is that a reasonable expectation, or is it
just because you are a medical student, which doesnt necessarily mean much, at
least at week 4, year 1?! And how would any obligation on your part compare with
that of a qualified doctor?
A second consideration is whether these apparent ethical obligations also translate to
legal obligations. Are all ethical obligations legal ones, or at least are all medical
ethical obligations also legal ones? Is there a difference between the legal obligations
in this setting between doctors and medical students? And would a doctor be legally
required to assist, even if s/he has never seen the person before, ie if the person is
not a patient of the doctor? The lecture and this resource explore these questions.
The focus here is on the duty of care, ie on the questions Who has a medical duty of
care, and when will it exist? What factors or circumstances establish that there is a
duty of care? What are the limits to the legal duty of care? We will also touch on
related issues such as the legal standard of care by introducing the legal notion of
negligence, but this is taken up in greater detail in subsequent weeks.
DUTY, CARE AND THE DUTY OF CARE
The two words duty and care conjure up different kinds of associations. Look up your
dictionary, which you now have a mouse-click away, or possibly in hard copy to
hand. Duty brings to mind ideas like rules, laws, obligations, requirements, even
possibly ideas like being contrary to what I want or desire to do, (eg I really want to
go clubbing, but I have a duty to look after my little sister because my mother is
sick. In this example, you can see that duties and certain desires can certainly
conflict, and the naturalistic ethicist would agree. But s/he would add that the duty
to look after your sister is not divorced from desire, since we also desire the welfare
of our loved ones). By contrast, care suggests things such as compassion, human
feeling, love, concern etc. There is a spontaneous feeling about caring, whereas
there is a more rigid, regimented feel to the notion of duty. Is it not therefore
somewhat odd to combine these two words in the phrase, the duty of care? As we
said earlier, why should there be any rules about doing things which are
spontaneous, things that we are going to do anyway?
The answer lies in what it is that professional ethics and the law aim to do, and also
in the relationship between ethics and law. These are large areas of intellectual and
practical interest, but you should start becoming familiar here with these
relationships and their underpinnings. First, there are many things which could be
considered to be unethical but which are not subject to any legal restriction. And
there are laws which do not appear to relate to issues of morality. Can you think of
any examples? Think here of the difference between private life and public life, and
some examples may suggest themselves. Here is a recent example related by a
friend:
My friend signed a lease contract with the owner of a business property, which included an
agreement by the signatories that at any time, with a certain period of notice, the landlord
could terminate the lease, if he decided to demolish the building and rebuild on the site. At
the time of signing the contract, he had already submitted an application to the local
authority for such a demolition and rebuilding. My friend signed the lease, and has
MEDI7131 EPP1
subsequently been informed that the demolition will go ahead. Hence he needs to find
alternative premises to run his business. He was not told at the time of signing the contract
that an application had been made, nor was it made verbally explicit that this was likely to
happen. He feels cheated by the landlord. One could argue that the landlord has treated him
unethically, but he certainly has not treated him unlawfully, since the possibility which he
now faces was included on the contract which he signed.
If we return to the scene of the car accident, should the law require anyone present
to assist? Think about the consequences if it did. If there were a general legal
requirement, might there be a chaotic situation with everyone at the scene pitching
in to help, for fear of being found at fault for not doing so, with the possible result
that the injured person is not helped at all? So, if not just anyone is legally required
to assist, where should the line be drawn? And how serious would the injury need to
be for there to be a legal obligation imposed on at least some classes of people to
assist?
These considerations result in the fact that there is, in the Australian common law
system, no general duty to rescue. This means, for example, that if an ordinary
citizen is walking past a pond, and sees someone struggling in the water, they would
not be held legally responsible for the struggling persons death, as a result of failing
to help. This may sound harsh, but it is a practical position for the law to take, as it
is considered that it would impose too high a level of obligation on ordinary citizens.
We may well feel that the person who passed by and failed to be a Good Samaritan
acted immorally or unethically, but there is no legal requirement to help (there is one
exception to this in the Northern Territory, discussed later). One of the consequences
of this is that a passer-by who failed to help the drowning person would not be
punished by the law, although he may well attract moral/social censure for the
omission to act.
Now if we consider just the moral sphere, we may still want to draw a line here, for
example between a fit, young life-saver who happens to be strolling past the pond,
and a frail elderly lady on her morning walk. We will be more likely to criticise the
life-saver for failing to save the life of the drowning person than the elderly lady, due
to the relative ease with which the life-saver could save the persons life, and the
danger that the elderly lady would put herself in, were she to try and assist, and the
likely futility of her attempt. Both ethics and law take into account the various
circumstances which are relevant to our judgments. But we can also imagine that it
would be highly impractical if the law tried to make these sorts of distinctions in
individual cases, so - as in many other areas - it establishes a rule which is quite
black and white, and to which some of us might morally object on the basis that the
failure to act by the life-saver was a culpable omission, because to act and save the
persons life would be something of little or no cost to the life-saver. But if the law
tried to specify who was obliged to help and who was not, and also specify the kind
of situations in which certain categories of people were or were not obliged, our laws
would become voluminous, cumbersome and impractical. The law is often described
as a blunt instrument, but this is inevitable. As we will see later, there may be a
legal requirement for a doctor to help in the circumstances of our CBL case.
Sometimes the law will single out an identifiable category of person, in certain
defined circumstances, and impose a generally agreed ethical obligation as a legal
one.
So in summary, there can be a legal duty to do something which we take, from the
human and ethical point of view, to be caring: a duty of care, within circumscribed
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conditions. The law shapes and formalises what it understands as a moral consensus
in the community: for example, that doctors have a higher level of obligation than
other people, in certain defined circumstances. Recall from the lecture on law and
human rights how our positivist system attempts to respond to changing social
consensus.
THE LEGAL DUTY OF CARE AND NEGLIGENCE
Now recall, from the introductory lecture on medical law, that the legal category that
most frequently involves doctors is that of torts, or civil wrongs, and the most
frequently encountered tort is negligence. The law imposes a duty on doctors to act
with reasonable skill and care; failure to do that amounts to being medically
negligent. But first we need to determine what it means to be, and when, we are
under that legal duty.
What does it mean for someone to be under a legal duty?
In general terms, it means that if the duty is not discharged (or not discharged at
the required standard), the law can impose some sanction against the person placed
under the duty, in favour of the person to whom the duty was owed. This might be a
fine or imprisonment in criminal cases (eg where the duty is the duty not to assault
or murder someone else). Or it might be financial compensation paid by someone
who unintentionally harms someone else or their property (where the relevant duty
is the duty to take reasonable care).
Here we are interested in the duty to take reasonable care, as both an ethical and
professional duty, but also as a legal duty, ie a duty which is considered of such
importance that the community places us under the legal obligation, and if we are
thought to have failed to adequately discharge that obligation, we may be considered
to have been legally negligent (dictionary!). If someone considers that someone else
has been legally negligent, they must demonstrate all of a number of important
things (see Fundamentals of medical negligence, below), but the first of these is that
the person considered negligent was, at the outset, under a duty of care to the
person who claims to have been injured. So establishing that a duty of care existed
is the first step in the process of demonstrating negligence: if I was not under a legal
duty of care, then I cannot be held legally responsible for not acting in the way that
the duty requires. Think of the pond example again: if no citizen is subject to a legal
duty to rescue, then no one could be found legally negligent for failing to rescue the
drowning person; however, if the pond was inadequately fenced and/or sign-posted
by the local council, then the council could well be sued for negligently failing to take
reasonable care to make the pond safe.
Now, for doctors, it is uncontroversial that they are under both a professional and a
legal duty of care to diagnose and treat their patients (and to do other things, but
diagnosis and treatment are primary examples of the duty). In this resource, we are
interested in both the foundations of that duty, and the boundaries of the duty. By
examining some situations that are different from the ordinary case of the doctor
and his/her patient in the surgery or the hospital, you will gain an appreciation of the
shifting boundaries, and some of the uncertainty, in how the law governs medical
practice. This uncertainty results from the fact that, unlike other areas of the law,
where penalties are established for defined misdemeanours, the types of action for
which a negligence action can be brought are limitless and undefined: they cover the
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full spectrum of human behaviour.1 You can see that the law will be concerned with
establishing a reasonable balance between compensating injured people on the one
hand, and on the other hand, not stifling enterprise and initiative that create risk,
since if there were no limits to negligence at all, no one would be willing to
participate in anything for fear of continually being sued!
Establishing the duty of care
So it is important to establish the scope or boundaries of the duty of care, in our
case, for doctors. This has tested the minds of the judges, politicians and others for a
long time, and recently further significant changes have occurred, which will be
introduced here, but elaborated in later lectures.
Doctors will have all the duties to take reasonable care that any citizen has. For
example, you could be sued for damaging your neighbours house if you fail to
ensure that, while trimming your tree, a limb does not fall on his roof. The fact that
you are a doctor makes no difference in cases like this. But we are interested here in
doctors medical duties of care. While the scope and content of the medical duty will
obviously be relevant to medical practice, the general requirements are the same
across all activities. The first of these requirements that are crucial to the existence
of a legal duty of care, including the medical duty, is the general idea of the
neighbour.
In very general terms, a legal duty of care arises between people who are legal
neighbours, ie people who have the relevant relationship in the eyes of the law.
This relationship is based on two central principles, although they have undergone
some modifications more recently (see below). These are the principles of reasonable
foreseeability and the relationship of proximity. If you think of neighbours and
relationships, it makes sense that no duty of care can exist if there is no such
relationship. The extreme case is easy: if you and I are both driving to town, I
cannot be held responsible for your accident if I am on a different road there is no
relationship which connects us in terms of responsibility for the accident. The other
extreme is also easy: if I am following you to town, and I fail to brake and
consequently run into your car, then there is clearly a prima facie case that I
negligently caused harm to you and/or your car I failed to take reasonable care to
avoid causing you harm, by failing to apply the brakes. I was your legal neighbour
because I was behind you on the road.
The modern era of negligence law began with a famous English case Donoghue v
Stevenson,2 where Lord Atkin framed the test of the relevant relationship in these
terms:
You must take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbour. Who, then, in law is
my neighbour? The answer seems to be - persons who are so closely and directly
affected by my act that I ought reasonably to have them in contemplation as being
so affected when I am directing my mind to the acts or omissions which are called
in question. (my emphases)
Here you can see the principles of foreseeability and proximity at work. But they are
not easy to pin down. What is reasonable foreseeability? Who defines what is
1
J McIlwraith and B Madden. Health Care and the Law. Lawbook Co, Sydney, 2006, at 177.
[1932] AC 562.
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reasonable? How closely and directly affected by my action must someone be in

order that I should have them in contemplation? Just anyone who is affected, or a
more limited number? You can see that even when the law tries to define things in
terms of guiding principles, it is impossible to be so specific that all uncertainty is
removed.
The general idea is that not just anything that is foreseeable can be the subject of a
legal duty of care, and it cannot be just any kind of relationship. Again, this would
impose too high a level of duty, and be impractical in operation, so there must be
some limits. The proximity of the relationship limits the foreseeable cases which are
subject to the duty. The High Court of Australia, as well as lower courts, have
wrestled with how these limits should be drawn, over a number of years. In recent
times, the limits put on foreseeability by proximity have included different kinds of
proximity: there could be physical proximity (eg of road users), causal proximity (a
clear link between the action/omission and the injury sustained) and circumstantial
proximity (eg a defined relationship such as the doctor/patient relationship, and
further specifications of this). These types will often overlap.
It is up to the courts to determine whether a defendant has a duty of care, based on
the reasonable foreseeability of harm occurring within a relationship of sufficient
proximity. The test of reasonable foreseeability established in an Australian case in
1980 was that a risk be not far-fetched or fanciful. A third element was
subsequently added to foreseeability and proximity, which was a test of what was
fair, just and reasonable. You can see that with this kind of test, judges had to
interpret what the community would consider was a fair, just and reasonable
imposition of a duty of care. So-called public policy considerations are important.
These three tests were subsequently rejected in favour of a test of what is
reasonable in the circumstances according to community standards, and a
determination of what risks it was reasonable to take care about, including
considerations of the social utility of the activity in question. Again, you can see here
an attempt to balance (1) the necessity of all kinds of social and economic activity
(including professional activities like medicine) and the difficulty of guarding against
risks of harm, against (2) the need to compensate people for significant harms
sustained as a result of what the community would agree as being substandard or
negligent action. Note that the evaluative word reasonable, which appeared in Lord
Atkins famous ratio, occurs again in this more recent Australian test.
A brief history of negligence law
Such was the situation in the early 2000s. It will be helpful to briefly digress in time
and consider some historical facts which will put these and subsequent developments
in perspective, and bring us up to date.
In the English common law world, compensation for injury was once a matter of
strict liability, ie compensation was paid by the person whose action or omission
caused harm, not because s/he was at fault, but because the person was harmed as
a result of a (usually dangerous) undertaking from which the first person benefited
(eg a worker injured by an employers machinery would be compensated by the
employer). In these cases, the defence that reasonable care had been taken did not
operate, because even if the defendant had taken all the care that was possible, he
would still be found liable if harm resulted, ie he was strictly liable.
As the industrial revolution developed rapidly during the nineteenth century, it
became apparent that strict liability would put unreasonable limits on enterprise, and
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the law was changed to require a finding of fault, in order for compensation to be
paid. The fault is the negligent failure to take reasonable care. This change
effectively limited liability, and the history of this area of law has been, in part, a
succession of strategies to limit liability in response to the expansion in the scope of
negligence claims (remember the idea of the limitless types of action for which a
negligence action might be brought, covering the full spectrum of human behaviour).
In the area of medical negligence, the demonstration of fault is not easy, and many
commentators have said that particularly in the medical arena, obtaining
compensation is therefore often a matter of luck. Nevertheless, in recent years,
particularly the 1990s, there was an apparent increase in the number of medical
negligence claims in Australia (reflecting a world-wide trend), together with an
increase in the damages (compensation) awarded to patients. This helped to bring
about the perception of a medical indemnity crisis, with increasing indemnity
premiums and a loss of doctors from some of the higher risk areas of practice, eg
rural obstetrics, where the major load was shouldered by rural GPs. This in turn
prompted the Commonwealth government to initiate a Review of the Law of
Negligence in 2002, and this informed new legislation in all states, known as Civil
Liability legislation, which again was designed to limit liability and damages through
a number of measures. (The Review of the Law of Negligence which led to the Civil
Liability legislation, was not confined to the medical arena, but was a general review,
and the Civil Liability legislation is also general, although there are some sections
which are specifically designed for professionals, and some even more specifically for
doctors). (It should also be noted that many commentators consider that the crisis
was deliberately contrived to favour doctors and their insurers, and that patients
probability of being compensated for medical harm has been significantly eroded as a
result of these changes).
One of the measures was to provide a statutory definition of the duty of care, ie to
try to give a more exacting definition the duty of care for professionals, including
doctors. The relevant section in the Civil Liability Act 2003 (Qld) is:
(1) A person does not breach a duty to take precautions against a risk of harm
unless
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought
reasonably to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the position of the person would
have taken the precautions.
(2) In deciding whether a reasonable person would have taken precautions against a
risk of harm, the court is to consider the following (among other relevant things)
(a) the probability that the harm would occur if care were not taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm;
(d) the social utility of the activity that creates the risk of harm
(Reference 3)
You can see here again the use of troublesome words like reasonable and not
insignificant, but also that there is a need to take into account probability and
seriousness of risk, the difficulty of avoiding the risk, and the social utility of the
activity. In other words, this has been a natural progression from where the High
Court arrived prior to the Review, and is an attempt to balance compensation for
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injury with necessary social and professional activity. There is no doubt, however,
that the aims of the Review and the legislation were to impose further limits on
liability, ie to make it harder for injured people to obtain compensation, and
consequently to drive down indemnity premiums and encourage doctors back into
higher risk practice. As such, it has been criticised for favouring doctors more than
patients. However, it needs to be said that requirements (1) & (2) above will be
easily satisfied in the majority of ordinary doctor-patient interactions, and it will
remain the case that the existence of a duty of care is usually not the subject of legal
dispute between doctors and patients. It was the subject of debate in the emergency
case described below, which shows how the boundaries of the duty of care are not
fixed, and how they remain controversial and contested.
Torts and negligence
To further orient you in relation to the duty of care and negligence, it is helpful to
understand negligence as one of a number of torts. Tort is originally a French word
meaning civil wrong (tort means wrong, or twisted consider our word tortuous).
Torts are civil wrongs which give rise to legal actions between people, in order to
provide compensation for harm. Recall the example of my tree limb falling on my
neighbours roof. Here, I did not intend the damage to his roof to happen;
nevertheless, I may be held to have been careless, ie to have not exercised sufficient
(reasonable) care to prevent it falling and damaging the roof. You can see that
negligence does not require that someones action be intentional, as it must be in the
case of most crimes.
There is a continuum of seriousness of motivation in relation to torts:
intentional
wreckless
negligent
innocent
(more serious)
(less serious)
and also a continuum of seriousness of the interests which tort law protects:
bodily security
property / reputation / feelings
economic status
(more serious)
(less serious)
Negligence is not intentional, but it is also not innocent, because some fault is
considered to be involved. It is a matter of not taking sufficient care. Imagine I am a
Himalayan tour guide. It is one thing to push one of my clients off the mountain to
their death. It is another thing to fail to ensure that my party is given instructions
about safe walking. If someone falls to their death as a result of my failure to issue
safety instructions, I have been negligent not as seriously at fault as if I had
intentionally pushed them off the edge, but at fault nonetheless. An example of an
intentional tort is trespass against land or person eg if I assault someone, I may be
criminally responsible, but I may also be sued for the tort of assault in a civil court.
So there are intentional torts and unintentional torts. The unintentional tort of
negligence is the one which, much more frequently than other torts, involves medical
practitioners.
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Fundamentals of medical negligence

We are now in a position to make some sense of the central requirements of
negligence, including medical negligence. There are three fundamental requirements,
all of which must be demonstrated in order for the doctor to be found negligent, and
to have to provide compensation to the patient.
1. A DUTY OF CARE WAS OWED (eg by the doctor to the patient)
foreseeable risk qualified by factors described above
2. THERE WAS A BREACH OF THE STANDARD OF CARE
reasonable care = that of ordinary skilled person professing skill
defined currently as care widely accepted by peer professional opinion, ie by a
significant number of respected practitioners in the field, as competent
professional practice.
3. THE BREACH CAUSED THE DAMAGE OR HARM SUSTAINED
factual causation (breach is a necessary condition of harm)
normative causation (it is appropriate for scope of liability to extend to harm)
remoteness of damage (~ = foreseeability)
(These three elements are now part of the Civil Liability Act 2003 (Qld), whereas
previously they were accepted as part of the case law. You can see here that a
statute has taken over from the case law, although the case law remains relevant,
and negligence cases are still decided in the courts. The courts must now look to the
legislation for guidance, in addition to earlier cases).
Dont worry at this stage about the details of requirements 2 & 3. The focus at
present is on establishing the existence of a duty of care, and the scope of the duty
of care (element 1 above). It will suffice at present to give a simple example of how
the three requirements are applied. Imagine that a young female patient consults a
doctor concerning a breast lump. The doctor examines the patient and considers that
she has a benign lump, and reassures her. Twelve months later she is found to have
breast cancer. She sues the doctor for failure to diagnose her breast lump
adequately, with resulting harm. In order to be successful, she must persuade the
court that
1. A DUTY OF CARE WAS OWED
This is clearly the case, as she is one of the doctors patients (relationship of
circumstantial proximity; reasonable forseeability that failure to diagnose a
cancerous lump could lead to damage, of a not insignificant kind; other requirements
of Civil Liability Act satisfied).
2. THERE WAS A BREACH OF THE STANDARD OF CARE
Reasonable care in the circumstances would require more than a physical
examination. It would in many if not most instances also require imaging; this would
be widely accepted by peer professional opinion by a significant number of respected
practitioners in the field as competent professional practice, and failure to arrange it
would be a failure to practice at a reasonable standard.
3. THE BREACH CAUSED THE DAMAGE
The failure to order imaging is likely to be seen as having brought about the harmful
result, because the court would be likely to accept expert evidence that imaging
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would have probably revealed the lump to be a cancer, facilitating earlier treatment.
So the breach is a necessary condition of harm (factual causation); it was
appropriate for the scope of liability to extend to harm in this case (normative
causation); and the damage was not too remote.
Note that establishing causation would depend on clinical expert evidence to the
effect that it was more likely than not that the lump found on initial examination in
fact developed into the cancerous lump. If this is not accepted, the patient cannot
win the case, and obtain compensation, even if it is established that the doctor
breached the standard of care. Why? Because all three elements must be satisfied.
More about causation and the standard of care in later resources.
MEDICAL NEGLIGENCE AND EMERGENCY ATTENDANCE TO STRANGERS
We are now in a position to examine the case of an emergency, and to think about
how we would answer some of the questions posed at the beginning. Remember that
the object is not to become expert about this particular kind of case you will see
that no one is an expert concerning emergency cases for reasons that will emerge,
and that uncertainty remains but about the general principles of the duty of care
and the shifting scope of the duty. In considering the issues, you should get a good
general feel of how the law in this area operates as one of the primary social
contexts of medical practice.
We have already seen, and illustrated this with the pond example, that there is no
general duty to rescue in the Australian common law system. There is, in fact, one
exception. Section 155 of the Criminal Code of the Northern Territory states:
"Any person, who, being able to provide rescue, resuscitation, medical treatment,
first aid or succour of any kind to a person urgently in need of it and whose
life may be endangered if it is not provided, callously fails to do so is guilty of a
crime and is liable to imprisonment for 7 years.
The phrase any person appears to impose the duty on the average citizen, but note
the use of being able to provide and callously. Our elderly lady passing the
pond would not be considered able to provide , and her failure to help would not
be regarded as callous. Callous was interpreted in a 1994 NT case as meaning a
deliberate and conscious choice not to help, and so, to some extent, restricts the
scope of the duty.
It is clear from the breast cancer example that in the normal situation of doctors and
patients, a duty of care exists, but apart from the NT exception, there is no general
duty to rescue, and this was confidently thought to extend to medical practitioners in
relation to people who were not their patients, ie in situations like that in the CBL
case. This confidence was upset by a well known NSW case in 1996. 3 The sister of an
epileptic child was sent to summon help from a local doctor, when the boy was found
severely fitting one day, during a holiday. The doctor advised her to bring him to the
surgery, and when she said this was impossible, he told her to summon the
ambulance, which she said had already been done by another family member.
Despite her insistence, the doctor refused to attend the child himself. The court
considered that had he gone, he would have been able to treat the child with
3
Lowns v Woods [1996] Aust Torts Reports 81 376 (CA NSW)
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intravenous valium, which could have aborted the fit and probably prevented some
or all of the serious brain damage which subsequently occurred. The doctor was
found to have negligently failed to attend the child. The case was controversial as
the child was not his patient, and therefore the situation was one of rescuing a
stranger, for which there was no legal precedent, even in the case of a doctor.
So the initial and crucial question for the court was Was there a duty of care?
Remember that all three elements (duty, breach of standard of care, causation) are
required to establish negligence, and a little thought will reveal, on the story given,
that the other elements would have been probably satisfied. So in this case, the
question of the existence of a duty was the crucial concern that the court had to
decide. As previously noted, the existence of the duty of care will usually be in no
doubt, and it will be the breach or the causation element which will be in dispute
think of our breast cancer case above.
At the NSW Court of Appeal, it was found that physical proximity was satisfied (it
was a short distance from the doctors surgery to the boys accommodation);
circumstantial proximity was satisfied (there were no barriers preventing the doctor
from attending, such as dealing with another patient); causal proximity was satisfied
(treatment could have prevented harm). But it was also considered, in view of a
statement in the existing Medical Practitioners Act 1958 (NSW) concerning
emergency attendance, as expected professional conduct, and that the medical
profession has a generally higher duty than the public, that the duty element was
satisfied.
Not surprisingly, the decision was criticised heavily from some quarters, notably the
medical profession, which saw its duties being expanded beyond existing precedent,
and considered that this would set an unduly onerous standard for doctors the
implication being that they would always have to regard themselves as being on
duty. It was felt that such a decision was not for the courts to make, and that the
court was making new law on the run, rather than this kind of development requiring
legislation. The court was seen as usurping the role of the parliament, by
transforming a moral and professional obligation (in the Medical Practice Act) into a
legal one, in the absence of a clear legal precedent.
Remember that the case reached the NSW Court of Appeal, not the High Court of
Australia. This means that the case forms a precedent for NSW, not for the rest of
Australia. Remember, too, that the case was heard under the common law regime
which existed then, and which has now been superseded by the Civil Liability
statutes. And finally, remember that this is just one case, with its particular
circumstances. Any future case, say in Queensland, would be tested under the Civil
Liability Act 2003 (Qld), and in terms of its particular details. So prediction about
future emergency cases is not an easy matter. Having said all this, it is also the case
that the NSW decision would be studied closely in any state in any case that bore a
fundamental similarity to it.
GOOD SAMARITANS
Failure to render aid in an emergency may be regarded as unprofessional conduct.
Good Medical Practice: A Code of Conduct for Doctors in Australia, which is
recognised by the Medical Board of Australia as setting professional standards for all
doctors, states at 2.5 Treatment in Emergencies:
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Treating patients in emergencies requires doctors to consider a range of issues, in

addition to the patients best care. Good medical practice involves offering assistance
in an emergency that takes account of your own safety, your skills, the availability of
other options and the impact on any other patients under your care; and continuing
to provide that assistance until your services are no longer required.
(Reference 4)
Note that this is a professional guideline, not a duty under negligence law as
established in NSW for doctors (Lowns v Woods) or a statutory duty as in the
Criminal Code in the NT.
Recently in WA, the professional guideline was subject to examination in a case
involving an off-duty radiologist who had been in an incident involving another car at
night, and had driven to a nearby police station to summon help, rather than stay at
the scene and render direct assistance. The trip to the police station took only a
minute, but a person in the other car subsequently died at the scene. The WA
Administrative Tribunal found that the doctor should have stayed at the scene and
rendered assistance, even though she was shocked and shaking, and that her failure
to do so amounted to improper conduct for a doctor. This decision was overturned by
the Court of Appeal of the Supreme Court of WA, based primarily on finding that the
Tribunal had failed to establish that there was a specific professional duty that the
doctor failed to uphold, that would have been supported by her professional peers.
This was a hotly disputed case, pitting the general principle that doctors should try
and assist in emergencies against the particular, distressing circumstances at the
time. Clearly, while the doctor in this case finally (after 12 years!) had the initial
decision overturned, it remains the case that doctors could be found to have
practised improperly in relation to the Medical Board of Australias Code of Conduct
for Doctors in Australia, in certain circumstances where they fail to render Good
Samaritan assistance.
But what happens when a medical Good Samaritan does go to someones aid? For
example, had Dr Lowns gone to the aid of the fitting child, what standard would his
treatment have been held to, given that he would have been out of his usual surgery
environment? What standard would an off-duty doctor be held to, in a Blood on the
Road situation?
Queensland and all other states and territories have enacted protective legislation
which encourages health professionals to step forward and help, with an assurance
that they will not be sued if something goes wrong. Under this legislation, there is no
liability for the health professionals if the action is performed in good faith, without
gross negligence, and without a fee or expectation of a fee. It is important to note
that this legislation does not require attendance at emergencies, but provides
protection against legal liability in the event that a health professional attends and
treats. Note also that there have been no Australian cases of negligence against
Good Samaritans, including doctors. Once a doctor moves to a conventional
situation, however, the normal rules of negligence apply. For example, if a doctor
provided assistance at the scene of an accident, accompanied the person to a
recognised treating facility, and continued to provide treatment, say in a hospital or
emergency centre, the circumstances have changed, with any concessions made for
the difficulties of treating at the roadside no longer applying.
(Reference 5)
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CATEGORIES OF THE LEGAL DUTY OF CARE

We have examined the difficulties of establishing the scope of the duty of care,
mainly in relation to the example of the emergency attendance on a stranger, but
this is an unusual case, and with the normal doctor/patient relationship there is no
such difficulty. But just what are the activities within this normal relationship, which
are governed by the legal duty of care and the required standard? That is to say,
what are the routine categories of activities of doctors that are subject to the legal
duty of care? They include
the duty to diagnose and treat (straightforward - the most common duties);
the duty to attend when required (eg house-calls) or at least to arrange for
medical attendance / attention (including at least some emergencies in NSW,
and possibly elsewhere, but note the uncertainties for other places and for all
places depending on the circumstances of the case);
the duty to disclose adequate information for decision-making (detailed
attention is given to this topic in year 2);
the duty to follow-up patients (some uncertainty exists here as to the level of
follow-up, but cases of negligent follow-up have been decided against doctors
in Australia);
the duty to keep patients confidences (detailed attention is given to this topic
in year 2).
The following duties are somewhat less certain, ie they illustrate the uncertain scope
of the medical duty of care:
the duty to passers-by (see below);
the duty to protect third parties (two cases in NSW);
the duty to potential patients (non-emergency cases; one case in NSW).
There is also a duty of care which, although it is certain, is somewhat unusual:
the duty to the unborn (more detailed attention will be given to this topic in
year 2; it is mentioned in the Kerridge text).
There is an additional duty that might not be seen as a direct duty of patient care,
but can be thought of as helping to fulfil the general concern to benefit and not harm
patients. This is
the duty to disclose medical error (see below).
And a new duty is rearing its head, although it is too early to be clear about it:
The duty to review test results generated by Nurse Practitioners (NP), even if
there is no established collaborative arrangement between the NP and the GP
to whom the NP has sent the results.
Finally, the question arises as to whether there is a duty to continue to see a patient,
once a doctor-patient relationship has been established. Or can a doctor end a
doctor-patient relationship? The answer to this second question is - yes. There will
inevitably be instances of communication breakdowns, loss of trust, instances of
extremely poor compliance, doctor-shopping, coercive or otherwise unacceptable
behaviour on the part of a patient despite attempts to medically manage this, and so
on. In such cases, it is legally permissible for a doctor to indicate to the patient that
s/he can no longer be their doctor. The primary consideration should be that
continuing the doctor-patient relationship is judged to be not in the best interests of
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the patient, even though the motivating factor for the doctor might be something the
patient has said or done. This requires adequate advice regarding the decision,
advice re outstanding clinical issues that need to be addressed, and a request for the
patient to notify the doctor of any new arrangement so that clinical information can
be forwarded.
Duty to disclose medical error
In these days of quality assurance, demands for quality and transparency from more
educated/demanding patients, and the erosion of professional autonomy and
protection, the duty to disclose error has become a cutting edge issue for ethics and
law. On the one hand, error itself is complex and not always attributable (or at least
solely attributable) to individuals; it may imply an admission of legal liability and
vulnerability to sanctions; and it may harm vulnerable people. On the other hand,
admission of error is one way of dealing honestly with patients; it satisfies
requirements for justice; and it supports a more open system which can use it to
improve medical treatment, prevent recurrences and provide patients with
reassurance that something has been done.
There has been a trend in recent years to move from a professional ethical
discretionary model (ie where doctors are encouraged to disclose individual error) to
a more systematic model, where disclosure of error will often be from a team or
institution. There is greater support for both patients and health care workers within
the healthcare environment, but there is also a trend towards imposing a more
explicit legal duty.
An Australian Open Disclosure Framework has been developed by the Australian
Commission on Safety and Quality in Health Care:
(http://www.safetyandquality.gov.au/our-work/open-disclosure/), in association with
other safety and quality assurance measures.
Queensland Health has an Open Disclosure program which follows the principles of
the Australian Open Disclosure Framework.
The Medical Board of Australia, in Good Medical Practice: A Code of Conduct for
Doctors in Australia, includes disclosure guidelines at 3.10.
(Reference 4)
But is there a strict legal duty to disclose medical error? The short answer is YES
at least to the extent that there has been a case in NSW, where the judge stated
that the doctor, who had severed the patients accessory nerve during an operation
to remove a shoulder lump, and where the patient lost the opportunity to have the
nerve repaired because she was not told, ought to have determined that the nerve
had been damaged and ought to have informed her. 4 And there have been cases in
overseas common law jurisdictions, notably in the UK - Naylor v Preston Area Health
Authority (1987) 2 All ER 353 - where the judge stated that there is a duty of
candour which arises out of the general duty of care of the doctor to the patient. Like
the Lowns v Woods emergency attendance case, these cases do not provide a certain
precedent for Queensland; nevertheless, it is likely that a similar case here would
have the same result.
More will be said about medical error, patient safety and open disclosure in year 2.
4
Wighton v Arnott [2005] NSWSC 637.
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Duty to passers-by
Consider the following cases:
1. A doctor passing through the airport notices that the security officer checking his
bags is sweating, has a tremor, a distinct anterior neck welling and very prominent
eyes. The doctor suspects that the officer may have hyperthyroidism, and wonders
whether to say anything to her.
2. A doctor notices a very dark, craggy skin lesion on the foot of a forty year old
friend of her daughter. She wonders whether to advise him to seek medical advice.
These cases are like the Lowns V Woods case in one respect there is a possible
obligation on the doctor towards someone who is not their patient but unlike the
Lowns v Woods case in another - they are not of the same urgency (although both
are potentially serious). Such cases have not arisen within the case law, so there is
no direct legal guidance to be had. You should think about them from the ethical and
professional point of view. Try and formulate a case where there is a strong ethical
(and a likely legal) duty to act, and another where the ethical duty would not be so
strong, and where it would be unlikely that there was a legal duty.
(Reference 6)
FINAL WORD OF ADVICE
You should regard this resource and the accompanying lecture as a broad basis for
much of what follows in phase 1 in the areas of the professional and legal duty of
care, and related issues to do with the standard of care and causation. Refer back to
this resource when you reach these other topics, and it should assist you in obtaining
a coherent picture of some of the most important professional and legal
requirements imposed on individual doctors. The detail of cases is not the focus, but
the principles to which they point, and the reasons for changes in the law governing
these areas.
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CONSENT TO MEDICAL TREATMENT

ETHICAL BASES, ELEMENTS AND LEGAL REQUIREMENTS
SUMMARY
Author
Contact
Revised
Learning
Objectives
Resource
Summary
Key Words
References

m.parker@uq.edu.au
February 2015
Explain
the ethical bases of consent to medical treatment
the ethical and legal requirements for valid consent
the legal implications of failure to obtain consent
the contribution of proper consent to patient safety
The series on consent issues comprises Consent to Medical Treatment,
Informed Decision-Making / Negligence and Refusal of Treatment. This
lecture examines the ethical bases of consent to medical treatment, the
necessary elements of consent including competence, voluntariness,
and disclosure, additional legal requirements for legally valid consent,
and the legal processes which may be pursued when valid consent is not
obtained.
consent, competence, informed decision-making, disclosure, trespass,
negligence, advance directives, research
1. Kerridge I et al, Ethics and Law for the Health Professions, Ch15 (4th
Ed).
2. Stewart C et al. Australian Medico-legal Handbook. Ch 6 (pp 65-72).
3. QHealth Informed Consent website:
http://www.health.qld.gov.au/consent/ At this site, see examples of
individual procedure consent forms.
See QHealth Guide to Informed Decision-Making in Healthcare at
http://www.health.qld.gov.au/consent/documents/ic-guide.pdf
4. Australian Health Ethics Committee of the NHMRC: National
Statement on Ethical Conduct in Research Involving Humans (2007), at
http://www.nhmrc.gov.au/guidelines/publications/e72
5. A Akkad et al. Patients' perceptions of written consent: questionnaire
study. (2006) 333 BMJ 528.
6. S Seiden & P Barach. Wrong-Side/Wrong Site, Wrong-procedure and
Wrong-Patient Adverse Events. (2006) 141 Archives of Surgery 931-93.
LEARNING RESOURCE: CONSENT TO MEDICAL TREATMENT
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Purpose
The lecture and this LR examine the ethical and legal elements of consent to medical
treatment. In addition, they attempt to clarify some important variations in terminology.
In discussions about consent, some terms have different meanings, depending on the
country or jurisdiction in which they are used. (eg consent, valid consent, informed
consent, informed decision-making). These differences will also be considered in the
materials concerning information disclosure for decision-making. The three resources
covering consent, informed decision-making and refusal of treatment, should be
considered as a suite of interrelated materials.
Ethical bases of consent
The idea of consent goes beyond mere agreement. Think of the sorts of things we might
agree to, and the sorts of things we might consent to. Are they the same? Agreement
is often (though not always) concerned with factual or moral belief - "I agree with what
you say"; I believe the same thing you do. With consent, there is more of a sense of
acting: giving consent means the authorisation, by a competent, and hence
autonomous person, of someone else to perform some act in relation to the
authorising person. Failure to obtain proper consent prior to acting therefore amounts
to interfering with the person without his/her authorisation. Whether this causes
damage or not, it is an infringement of their freedom, but if there is damage, it is also an
infringement of their bodily integrity and inviolability. Consent to medical treatment is
ethically and legally required because what would otherwise, in many cases, be an
assault of a serious nature, must be authorised!
Patients may consent to many different things, such as the release of confidential
information (where increased obligations have been applied to health care practitioners
through amendments to the Commonwealth Privacy Act). The paradigm case of
consent, of course, is the performance of a medical procedure or investigation, which
often involves some risk to the person. This is an example of consenting to a direct
intervention affecting the patient. More indirect interventions, such as prescribing
drugs, must also be consented to, although this is often achieved by an implied
consent, rather than an explicitly stated or written consent (see below).
Elements of consent
Not surprisingly, all of the following requirements relate to the patient's autonomy:
1. The authorisation must be free and voluntary.
Think of the kinds of influence which a doctor might bring to bear on a patient which
might coerce his decision, and the things which, while still having some bearing on
patient decisions, leave the patient to freely decide. Is there a difference? What are
some examples of these different types of influence?
2. The patient must be competent.
The patient must comprehend, believe, and understand the information provided.
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Recall earlier discussions of the requirements for competence, including the situations
in which competence may be compromised. Could a person be incompetent in some
respects yet competent to authorise a certain treatment? Remember too that a person
may be permanently incompetent, while someone else may be temporarily incompetent,
eg due to the effect of drugs, alcohol or a medical condition eg an infection.
3. The patient must be adequately informed. Authorising a treatment without adequate
knowledge might turn out to be authorising something which we do not want to happen.
In regard to this, some patients will have language difficulties, and may require
interpreters to help them understand the proposed treatment.
Note that being competent and being informed are different things. Some people
see being informed as an element of competence, believing that you cant make a
competent decision unless you are adequately informed. Well, you certainly can make a
competent decision, even if you are inadequately informed, but you may well have
made a different decision, had you been better informed. Think clearly about this
statement. In both cases, you make a competent decision in the light of whatever
information was made available to you. Competence is a characteristic of the person
making the decision, not of the information made available.
Legally valid consent
The three ethical principles covered above are also included in Australia's requirements
for legally valid consent. But it is important to note in relation to being informed, that for
legally valid consent, this must be in the form of being given a broad, general
understanding of what is proposed. We will see in the lecture on informed decisionmaking that more detailed, patient centred information must also be provided, but this is
in relation to satisfying the requirements for non-negligent disclosure for decisionmaking. This may sound like splitting hairs, but in Australia the law has certainly split
this particular hair).
In addition to these three fundamental requirements, there are some additional legal
requirements:
1. The patient's consent must cover the actual procedure to be performed, and not a
different one. If I consent only to an appendicectomy but I am also sterilised during the
procedure, then I have not consented to everything that occurred; my consent was not
legally valid in relation to the sterilisation. (Are there any exceptions to this? Think of
life-threatening situations).
2. The procedure must be legal in itself. (What examples of illegal medical procedures
can you think of, to which a patient may still be willing to consent, even desperately
keen to have happen?)
3. The consent given to a doctor to perform a procedure refers to only that doctor. (In
what situations might this rule be waived? Why? Think of public hospitals and the
nature of the care provided therein).
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Consent and trespass

Failure to satisfy these requirements may indicate that consent was invalid, and result in
legal proceedings against doctors. Consider a case where the left arm was operated on
instead of the right: what was done was not what was consented to. Or consider a
case where the person was deceived into providing consent to a procedure which he
did not really want. In these cases, something has occurred without the patient's
voluntary authorisation - an invasion of the person's body to which he did not properly
consent legally, this amounts to a trespass on that patient's person.
You should review the material concerning the duty of care, where the idea of tort was
introduced. Trespass is a tort (a civil wrong) involving a wrongful, direct interference
with another person, or with his/her land or property. Trespass can be of two kinds,
when it concerns interference with the person: assault or battery. An assault is an
intentional or reckless act causing someone to be put in fear of harm. A battery is an
intentional or reckless application of physical force to someone without his consent.
(The terminology is a little confusing, since in day to day conversation, we often use the
term assault to indicate physical contact and harm, but the legal terminology
distinguishes assault and battery as described).
The criminal law punishes common batteries. Medical assaults/batteries resulting from,
say, fraud, deception, or physical force may also be punished as crimes (consider a
doctor who sedates patients in order to indulge in sexual acts with them if found guilty
he will be sent to prison, for criminal assault and for rape). But more usually, medical
assault/battery will be dealt with under the civil law tort of trespass, because most cases
will be unintentional, and because the primary aim of the legal suit is to recover
compensation for the patient. Think again of the mistaken operation on the left arm
instead of the right. The doctor who committed this mistake arguably should not be put
in jail, as s/he did not intend to operate on the wrong arm. However, s/he did make a
serious error. (Here we are interested primarily in the legal matter of consent and
trespass, but in such a case, of course, related issues of patient safety, medical error,
apology etc also arise: see last section of this LR).
Trespass is said to be actionable per se, ie the patient does not have to prove that any
actual damage occurred, in order to be successful in the legal suit. Indeed, a patient
whose life has been saved may still sue in trespass, if s/he did not provide consent to
the life-saving procedure. This occurred in a well known Canadian case where a lifesaving blood transfusion was given to a patient who had rejected in advance any
treatment with blood products. Damages were awarded, despite the opinion of the
appeal court that the treatment in itself was competent, the results were favourable (ie
favourable in the eyes of most people because life was saved), and the doctor's overall
conduct was exemplary. Nevertheless, the Jehovahs Witness patient suffered mentally
and emotionally as a result of an unconsented blood transfusion. In view of the tensions
between the patients advance refusal of the treatment that was given and the doctors
understandable perceptions of his professional obligation to save the patients life, the
damages awarded were only small - $C20000).
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Trespass and negligence

Recall the other, medically more frequent kind of tort, introduced in the Duty of Care
lecture - negligence. The distinctions between trespass and negligence are important
in Australian medical law.
1. Consider the saving of the Canadian patient's life by way of a blood transfusion,
despite her carrying an informal advance directive, refusing consent to any such
transfusion: here, there is an intentional action (a battery), and the patient may sue the
doctor in trespass (a technical battery).
2. Consider another case, where a patient consents to an operation on her left arm, but
the doctor mistakenly operates on her right. Since she did not consent to the procedure
that occurrred, the patient again may sue the doctor in trespass. The fact that the doctor
did not intend the damage resulting from operating on the wrong arm does not prevent
the patient from taking such action, as we have seen. (See reference 6 for further
consideration of errors of the wrong side, wrong site, wrong procedure and wrong
patient types).
3. Finally, consider the case where the patient consents to an operation on her left arm,
having a general idea of the kind of operation which will be performed. The operation is
performed on her left arm, but complications follow, about which she was not fully
appraised. Because she had an adequate broad, general understanding of the
proposed surgery (one of the requirements of legally valid consent, above), and
because the doctor did nothing which she didn't authorise, she would not be able to
successfully sue the doctor in trespass, since she validly consented to the operation
performed, on the basis of that general understanding.
It is only actions where no consent to the procedure done has been given (eg 1 & 2
above) which can be pursued in trespass. In case 3, the doctor has not failed to obtain
the patient's consent, nor acted without her consent, and not overridden her refusal. But
in failing to disclose to her certain materially relevant risks, the doctor has reduced the
"quality" of the consent she has given, by making it less informed from her particular
point of view. Had the patient been more adequately informed of the risks, she may not
have had the procedure. In this case, she could sue the doctor in negligence, based on
the claim that she was inadequately, or negligently, informed, in terms of what was
significant to her.
In summary, a valid consent requires the features listed above, just one of which is a
generally adequate disclosure. If valid consent is not obtained, a patient may sue the
doctor in trespass. Informed decision-making is governed by more stringent
disclosure requirements, and failure to disclose risks under these requirements may
result in a suit in negligence. This will be discussed fully under Informed DecisionMaking / Negligence, in the next lecture.
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Because of this distinction, the term informed consent, which combines the consent
element and the disclosure element, is somewhat misleading in Australia.
Interestingly, Queensland Health has developed a framework for consent and a
collection of specific consent forms for a range of procedures, which go some way
towards combining the requirements for both consent to treatment and informed
decision-making, which have been distinguished above. We will examine these more
closely under Informed Decision-Making / Negligence. QH has also recently developed
a comprehensive Guide to Informed Decision-making in Healthcare, which similarly
combines the requirements in relation to both consent, and informed decision-making.
(Ref 3)
Queensland statutory provisions concerning consent by incompetent persons
Patient competence was stated above to be one of the primary requirements for an
ethically and legally valid consent. Does this mean that when a patient is not competent
to consent to treatment, consent is not required?
No, it means that consent must be sought from another person

or body, in almost all cases.
Queensland (and other states) have enacted a number of laws which provide for
substitute decision-making, following extensive community and professional
consultation. Generally speaking, these provisions have shifted decision-making power
in the direction of patients and families, and away from health care professionals.
The relevant Queensland legislation is the Powers of Attorney Act Qld (1998) and
Guardianship and Administration Act Qld (2000). These Acts and their provisions will be
examined in greater detail later this year, when there is a focus on advance health
directives and substitute decision-making for people who have been competent but
have lost that competence (or decision-making capacity). At this stage, it is important to
be generally aware that they extend the decision-making powers of citizens by way of
processes allowing advance planning for a time when the person will be incompetent,
for example, by
writing an advance health directive, or

appointing an attorney (usually a family member) who can give or refuse consent for
a number of (but not all), health care matters, or
in the absence of the appointment of an attorney, having a default attorney, known
as a statutory attorney, given the same powers (usually a spouse, unpaid carer or
close friend).
What is consented to by a competent person, or through an advance directive, carries

most weight. There are some matters, such as tissue donation, research, ECT,
psychosurgery, and sterilisation, to which consent may be given by competent persons,
either directly or through an advance directive, but not by attorneys acting for
incompetent people. In Queensland, these matters are referred to as Special Health
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Care. Consent to such matters on behalf of an incompetent person, who has not
previously authorised them via an advance directive, is given by the Queensland Civil
and Administration Tribunal, or in the case of ECT and psychosurgery, under the
provisions of the Mental Health Act. The withdrawal of life-sustaining treatment, which a
competent person may authorise directly or via an advance directive, was initially a
Special Health Care matter, and was excluded from those things to which attorneys
could give consent. However, an amendment to the Powers of Attorney Act 1998 now
allows this to occur, under certain conditions.
Most people who write advance health directives do so to indicate what treatments they
do not want, and under what circumstances, in order to prevent receiving unwanted
treatment. But advance health care planning, including advance health directives,
includes the possibility of consenting to treatment in advance, as well as refusing
treatment in advance. When might it be important to think about making an advance
consent to treatment? (Clue: think of the mental health setting).
A current controversial issue concerning consent on behalf of incompetent people
relates to treatment that is considered clinically futile by the treating doctor/team. The
Queensland legislation currently requires that the substitute decision-maker must
consent to the withholding of treatment that is considered futile, because (1) medical
treatment must be consented to and (2) withholding treatment is included in the
definition of medical treatment in the relevant legislation (Guardianship Act). This means
that doctors must inform substitute decision-makers about treatment that they are not
considering commencing, and obtain consent for not commencing it. This is not a
requirement in other states, based on the common law rule that doctors are not obliged
to provide futile treatment. This situation was considered by the Qld Law Reform
Commission in its recent inquiry into Queenslands Guardianship regime, with some
submissions stating that Queensland should remove this requirement so that doctors
are not required to obtain consent to not provide treatment that they believe is futile,
whereas others argued for the requirement to be retained, on the basis that it is an extra
safeguard against unilateral decision-making by doctors. We will revisit this particular
feature of Queensland law when we discuss advance care planning and substitute
decision-making in more detail later in the year and also in year 2.
Ways of giving consent
Three axes exist: consent may be given currently or in advance (see above); it may be
explicit or implied, and it may be verbal or written.
You should be able to distinguish explicit and implied consent, and provide examples of
each. In which clinical situations would an implied consent be sufficient, and when
would it be insufficient?
An example of a situation where both explicit and implied consent are utilised is that of
bone marrow transplantation. Here, consent will be provided at the outset, after the
patient is appraised of the broad nature of the process. During the process, which often
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involves a number of separate events, consent may be implied for the less significant
interventions, while for the more invasive ones, a separate consent form may be
completed. The crucial aspect is the continuing communication between health
professionals and patients for the duration of the process.
You should also be able to explain the relations between verbal and written consent,
and the limitations of written consents (eg consent forms) in terms of consent being a
process, rather than an event.
Exercise
See if you can obtain a consent form from a hospital ward, and critically assess it.
Determine the extent to which a hospital consent form satisfies the requirements for
ethically and legally valid consent, as discussed above.
Is the consent form the same as that provided at the QH Informed Consent website
for the procedures offered in that particular clinical setting, or is a different/local
form in use?
Consent mistakes, checklists, hierarchies and patient safety
The clinician responsible for the patients care is responsible for obtaining consent for
interventions. This responsibility is still sometimes delegated to junior staff, and has
often been performed poorly, through no fault of those staff, but often as a result of time
constraints, procedural inadequacies and inexperience. Inadequate consent procedures
can have serious consequences, mainly for patients but also for doctors and health
facilities. For example, in 2002, a 78 year old womans healthy right breast was
removed instead of her cancerous left breast, due to an error in a written consent form
completed during a busy morning session at Campbelltown Hospital (NSW) as a result
of a failure to check the medical records. In 2004, an English surgeon removed a
transplanted kidney instead of the diseased polycystic kidney from a female patient,
who subsequently required dialysis, as a result of inadequate time spent obtaining
consent and confusion on the theatre list.
Recognition of the problems, better consent forms, awareness of legal risk involved in
poor consenting practices, and changes to procedures (such as obtaining consent at
preadmission clinics) are helping to improve things. If junior staff obtain consent from
patients, they must be aware of all the requirements of this task. Senior staff must be
aware of their responsibilities to both patients and their junior colleagues in the matter of
consent.
Mistakes can also be minimised by the use of checklists. Recent research (2009) by the
UK National Patient Safety Agency showed that using checklists can reduce surgeryrelated mortality by 40%. Another contributor to patient harm can be the hierarchical
nature of medical culture, whereby junior staff members are prevented from speaking
up in response to perceived failures in processes and procedures. Deliberate strategies,
eg including on surgical checklists the requirement for all members of the surgical team
to introduce themselves at the commencement of the procedure, can change the
likelihood that staff will speak up when they have concerns.
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Check the Surgical Safety Program page at p56 of the Fifth QH Report on Clinical
Incidents and Sentinel Events in the Qld Public Health System 2009-2011, at
http://www.health.qld.gov.au/psu/reports/docs/lta5.pdf. While this LR has focused on the
ethical and legal aspects of consent in relation to individuals, you will see that a proper
consent procedure is one of a large number of patient safety programs undertaken by
modern health systems check the program list under Section 5 at the contents pages.
Also check the WHO Surgical Safety Checklist at
http://whqlibdoc.who.int/publications/2009/9789241598590_eng_Checklist.pdf.
Consent in clinical practice & research
Consent to medical procedures is parallelled by issues of consent in research involving
human subjects. Indeed, developments in the ethical and legal requirements of
research preceded and stimulated changes in clinical requirements. Why do you think
this was the case?
(See ref 4 regarding consent requirements in research involving humans, but note that
there is also a separate lecture concerning Research Ethics which covers this).
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INFORMED DECISION-MAKING:
STANDARDS OF DISCLOSURE, LEGAL REQUIREMENTS, NEGLIGENCE
SUMMARY
Author
Contact
Revised
Learning
Objectives

m.parker@uq.edu.au
January 2015
Distinguish between consent & informed decision making.

Critically appraise the contested ethical standards of information and risk
disclosure in relation to informed decision-making for medical procedures.
Describe current legal standards for disclosure, and the history of change
in the standard in Australia.
Explain how failure to warn or disclose, as a breach of the duty of care,
can constitute medical negligence.
The lecture elaborates different perspectives on informed decisionResource
making: ethical, clinical and legal. This associated LR notes allow students
Summary
to reflectively explore issues raised: contested standards of risk disclosure,
recent changes in legal requirements and their interpretation, and related
legal procedures in medical negligence against doctors who inadequately
inform patients.
References 1. Kerridge I et al, Ethics & Law for the Health Professions, 2013 4th Ed.
(recommended text). Ch 15: Disclosure is discussed within the context of
ethics & law of consent generally, but pay attention to pp356-365 in the
legal section. See also Ch 13, pp277-278 & pp284-286 on therapeutic
privilege.
2. Kirby M, Patients' Rights - why the Australian courts have rejected
'Bolam', Journal of Medical Ethics, 1995, 21:5-8.
(an account of developments in negligence law concerning disclosure in
Australia, with contrasts to other jurisdictions)
3. NHMRC. General guidelines for medical practitioners on providing
information to patients. 2004.
http://www.nhmrc.gov.au/publications/synopses/e57syn.htm
4. NHMRC. Communicating with Patients: Advice for Medical
Practitioners.
http://www.nhmrc.gov.au/publications/synopses/e58syn.htm
5. NHMRC. Making decisions about tests and treatments: principles for
better communication.
http://www.nhmrc.gov.au/publications/synopses/hpr25syn.htm
6. AMA. Informed Financial Consent 2006. https://ama.com.au/positionstatement/informed-financial-consent-2006
7. QHealth Informed Consent Site:
http://www.health.qld.gov.au/consent
8. Civil Liability Act 2003 (Qld)
http://www.legislation.qld.gov.au/LEGISLTN/CURRENT/C/CivilLiabA03.pdf
9. Joint Commission. What Did the Doctor Say? Health Literacy and
Patient Safety.
http://www.jointcommission.org/assets/1/18/improving_health_literacy.pdf
LEARNING RESOURCE: INFORMED DECISION-MAKING
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PURPOSE
This resource supports the lecture on informed decision-making, and is the
second in the trio of lectures and LRs on consent, informed decision-making
and refusal of treatment. These resources should help you to place the duty of
disclosure in the context of the broad area of consent, and to understand the
standard of care for disclosure of information and how that contrasts with the
standard for other medical duties such as diagnosis and treatment, which will
be discussed in a subsequent lecture.
The previous lecture and the LR on consent to medical treatment contrasted
valid consent/trespass with information disclosure/negligence, and explained
why the phrase informed consent is somewhat confusing in the Australian
legal context, as it combines these two distinct, though related, legal notions.
Information provision or disclosure is discussed in more detail here. As one of
the areas concerned with the standard of care, disclosure is the subject of
recent legislative developments (civil liability legislation) which was part of the
response, beginning in the early 2000s, to the medical negligence crisis of
the 1990s.
INTRODUCTION
Recall that ethically and legally valid consent has a number of requirements.
One of these is that the patient must be adequately informed about treatment,
risks etc. Recall also that, in Australia, a patient's general understanding of a
proposed treatment is sufficient to negate a doctor's liability in trespass,
because with a broad or general understanding of the proposed procedure,
the patient is able to authorise treatment (assuming all other consent
requirements are satisfied). The phrase informed consent arose in the US,
where failure to disclose risks and alternatives counted as negating proper
consent. But for Australia, (and in the US too, more recently), the phrase is
misleading, as it rolls two concepts, and two legal processes, into one
(consent/trespass and disclosure/negligence).
Does an authorisation based on a general understanding sufficiently reflect a
particular patient's true wishes? To avoid legal suits for battery, doctors need
to advise patients of the nature, benefits & risks of procedures in broad terms
only; however, to avoid suits in negligence, they need to advise patients in
greater detail, because risks of a specific nature may persuade a particular
patient not to undergo a procedure. Failure to advise the patient of certain
specific risks may result in the patient making a decision, which is not fully
informed in terms of how that individual evaluates the risks. Just what needs
to be disclosed and who determines this have changed over time, in both
ethical and legal senses, to reflect changes in patient requirements and social
mores. This raises issues for practice.
Bear in mind the indication, given in the LR on Consent, that Queensland
Healths framework for consent and its surgical consent forms tend to blur the
contrast between consent/trespass and disclosure/negligence, to some
extent. You should revisit the QH consent website while considering the
lecture and this LR, and think about the adequacy of the consent forms to
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satisfy the requirements for both consent and informed decision-making.

(Ref 8)
INFORMATION DISCLOSURE AND NEGLIGENCE
Recall previous discussions concerning the duty of care of doctors, in
normal situations, emergency situations and others. Establishing that a duty
of care existed is the first of a number of requirements in pursuing a
negligence action, which is the pertinent action in relation to a claim of
inadequate information disclosure.
1. Duty of Care
In the vast majority of actions under consideration, there will be no dispute
concerning the existence of a duty of care.
2. Standard of Care for disclosure: material risk
Negligence implies that there was an alleged failure to observe the required
standard of care. Very generally speaking, the legally required standard of
care (for any pursuit, but including medicine) is the exercise of reasonable
care to avoid foreseeable risks, where reasonable care provided by a
person in a specific area is that of the ordinary skilled person exercising
and professing to have that special skill.
For any given group such as doctors, the difficult question is "What is
reasonable?" and it has been answered differently in different jurisdictions and
historical periods. That is to say, there have been changes in how the
question is answered, but also in terms of who has the authority to answer
it.
Australia has tended to follow English rather than US legal trends until
relatively recently. While in the US, a so-called reasonable person standard
of information disclosure came into effect more than 40 years ago, English
and Australian courts for a long time accepted that current professional
practice should determine the legal standard of care. This became known as
the "Bolam principle" (after a UK case), which states that doctors cannot be
found negligent if they act in accordance with what a responsible body of
medical opinion deems proper at the time. This applied to all areas of
practice, including diagnosis, treatment, and disclosure of risks, and is also
known as the professional practice standard. The profession determined
the standard, and the courts accepted this.
From the early 1980s, courts in Australia began to move away from the Bolam
principle, this shift being a specific instance of the general rejection of medical
paternalism. The famous Australian High Court case of Rogers v Whitaker
(1992) crystallised as law for all of Australia, what some state courts had
already been developing as more patient-centred requirements for information
disclosure, based on the idea that medical expertise is not relevant to the
question of what should be disclosed to a patient to facilitate his or her
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decision-making, since medical expertise per se does not extend to knowing

what is significant to each and every individual. In other words, medical
knowledge does not give the answer you have to ask the patient.
From Rogers v Whitaker (RvW):
"... 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."
So, in relation to disclosure, there are three possible standards:
1. Professional standard (Bolam: derived from UK)
2. Reasonable person standard (US)
(Australia, following RvW)
3. Particular person standard
Prior to RvW, state courts had moved only to the reasonable person
standard, whereby doctors needed only to indicate serious or frequent risks,
or risks specifically asked about by the patient. Note how the statement from
RvW combines the notion of a reasonable person standard with the
additional one of a subjective or particular person standard (ie what the
particular patient deems relevant or material). Note also that this standard is
quite high, since it requires the doctor to be aware of what his/her individual
patients would be likely to attach significance to, not simply what they
happen to ask about. They may not ask about things that they would still
attach significance to, due to often not knowing the appropriate question to
ask. You can see that this places a significant onus on the doctor to ensure
that s/he becomes aware of this.
Interestingly, the Bolam principle has now lost its influence in the disclosure
cases even in the UK, through some recent cases which have moved closer
to a reasonable person requirement for disclosure.
Think about the three standards so far described, including the particular
person standard, in relation to disclosure. How do they compare? Is there a
best one, and if so, why?
3. Causation in relation to disclosure
Recall that as well as the existence of (a) a duty of care, and (b) a breach of
the standard of care, a successful negligence action requires (c) the
demonstration that the patient was harmed by the breach of the standard of
care, ie that the breach of the standard of care legally caused the harm.
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Now, just as material risk can be understood in objective ways (reasonable

patient) and subjective ways (particular patient), so too can the causation
requirement.
In the US, an objective (reasonable patient) standard for causation is used;
this means that for procedures which are generally agreed to be necessary
and important for patient welfare, negligence actions based on claims of
inadequate disclosure seldom succeed, since the patient will find it very
difficult to persuade the court that they would not have had the procedure,
even if they been better informed. This is because they would have to
demonstrate that a reasonable person would not have had the procedure.
They need to do this in order to demonstrate the causal link between the harm
sustained and the failure by the doctor to adequately inform them. If it is
considered that the patient would have proceeded with treatment anyway,
even in the absence of a warning, the patient cannot then claim that the
damage would not have occurred. The court will usually think that a
reasonable person would have had the treatment in most cases.
By contrast, the High Court of Australia applied the subjective standard to
both materiality of risk (above) and causation. This means that when a patient
sued a doctor for inadequate disclosure of information leading to harm which
could have been avoided, it was open to the patient to show that s/he would
not have gone ahead, rather than having to demonstrate that any reasonable
person would not have proceeded. Now while this appears to be easier to
show - some critics have said the subjective standard "puts a premium on
hindsight and hence favours patients - it still had to be demonstrated in
some way, not just claimed. A number of Australian disclosure/negligence
cases following RvW failed because patients were not able to persuade the
court of the causal link. The court believed that even if the particular patient in
question had been more specifically warned, they would still have gone ahead
with the treatment. This contrasts with RvW where the patient was able to
persuade the court that she would not have gone ahead.
ETHICS, LAW AND PRACTICE
Despite the importance of the decision in RvW, (and as a consequence of the
judgement), some commentators and doctors claimed that abiding by the law
on disclosure became difficult and uncertain. The formal legal criteria
concerning material risk still left it somewhat uncertain as to how much to
disclose in individual cases. How are the various factors in each case,
including the nature of the medical problem, the patient's desire for
information (or sometimes the desire not to be informed), the nature of the
treatment or test, the health status of the patient and the patients level of
understanding etc, to be weighed?
Can too much information be provided? There have been cases where
patients have sued doctors for diligently disclosing information about risks or
side effects, which the patient has then claimed persuaded him/her not to
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undertake treatment, with resulting harm! You may be relieved to know that in
these cases the defendant doctors have not been successfully sued !
Furthermore, how do doctors experiences, biases and preferences about
investigations and treatments distort the provision of materially relevant
information to patients? And did the High Courts judgement, by placing
greater impositions on doctors, lead to the practice of disclosing information
being more of an event rather than an evolving process of interaction
between doctor and patient, as some have suggested? This may have
resulted from the understandable but mistaken interpretation of RvW by
doctors that everything down to the remotest and most trivial risks must be
disclosed, with time-poor doctors solving the problem by providing
exhaustive lists of risks to patients (look again at the QH consent forms are
these excessively detailed? not detailed enough?)
The NHMRC also produced guidelines for medical practitioners on information
provision in 1993, yet uncertainty remained, and the requirements continued
to be seen by some doctors as too demanding, especially considering the
time usually available to discuss risks with patients. [It should be noted that
these guidelines were in preparation well before the High Court made its
judgement in RvW. They were based on a combined report of the Australian,
NSW & Victorian Law Reform Commissions in 1989, that reflected developing
community attitudes towards information disclosure].
The 1993 guidelines were recently reviewed, but they have remained in their
original format (ref 3), supported by an additional statement on good
communication practices with patients (ref 4), and a further publication
Making decisions about tests and treatments: principles for better
communication (ref 5).
Therapeutic Privilege
In RvW, the High Court stated that the duty of disclosure was subject to a
therapeutic privilege. The court included the medical profession's right not to
disclose information, in circumstances where the doctor considers that the
disclosure itself would lead to significant patient harm. Generally speaking,
the privilege demands a high threshold probability of significant harm, given
current views on patient autonomy, and also considering empirical evidence
suggesting that patients usually benefit from knowledge and participation in
decision-making. It is generally agreed that, even if it is thought that the
provision of information for decision-making will provoke anxiety and stress,
this is insufficient to invoke the therapeutic privilege.
(ref 1)
Disclosure contrasted with diagnosis & treatment
Clearly, the Australian trend during these years was towards a courtdetermined standard for information disclosure, reflecting the courts'
recognition of the rights of patients to make decisions based on their own
values and deliberations, rather than a profession-derived one. However, it is
important to note that although the High Court defined the duty of medical
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care as a single comprehensive duty, it also distinguished between negligent

failure to diagnose & treat, on the one hand, and negligent failure to
disclose risks, on the other hand, in terms of establishing an adequate
standard of care. Although the High Court recognised that, in cases
concerning diagnosis and treatment, the Bolam principle had not always been
applied in Australia, it went much further in cases of disclosure of information
for decision-making, by making it clear that the Bolam principle was well and
truly dead in the water.
Thus the court was recognising a logical and common sense distinction
between areas where current professional practice must strongly influence
legal judgments concerning the standard of care (diagnosis & treatment), and
the area where medical expertise cannot be informative (the extent to which
a particular patient desires information). This distinction will be explored
further when we deal with the standard of care in diagnosis and treatment.
THE MEDICAL INDEMNITY CRISIS AND RECENT REFORMS TO
MEDICAL NEGLIGENCE, INCLUDING DISCLOSURE
You will recall when we examined the duty of care, our brief coverage of how
medical indemnity underwent significant changes from the late 1990s, in
response to perceptions of excessive premiums, excessive medical litigation,
and over-generous damages awards to patients. The medical profession had
become increasingly critical of changes in how the standard of care was
determined, whereby the knowledge and authority of doctors, even in
diagnosis and treatment cases, had been apparently diluted as a result of a
series of High Court judgements, including and following RvW.
Due to community and medical pressure, the Commonwealth and state
governments became active in this area from 2001. NSW passed legislation
which restricted damages awards in personal injury cases. Queensland
followed suit in 2002, with legislation which capped large claims, streamlined
legal procedures, and encouraged structured settlements in preference to
lump sums, amongst other reforms. The AMA amongst other groups
pressured the Commonwealth government to reform the medical indemnity
system, aiming for capped damages awards, a national scheme for financing
catastrophic injury claims, and the redefinition of medical negligence,
according to the perceptions of unfairness to the profession, mentioned
above.
In early 2002, the Commonwealth initiated the Commonwealth Review of the
Law of Negligence (Ipp Review), whose primary reference was to propose law
reform aimed at limiting liability and the level of damages arising from
personal injury and death (generally, not just in relation to medical practice).
The Review made numerous recommendations concerning personal injury in
general, but important ones concerning the duty of care, standard of care,
causation and damages elements of negligence, including medical
negligence. Some of these recommendations have been incorporated into
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recent legislation, including Queenslands Civil Liability Act 2003 (ref 8).
We therefore now have the situation where different parliaments have
responded to a perception of the inability of the common law to manage
personal liability in a balanced way, particularly in the medical negligence
arena. Consider this section of the Civil Liability Act 2003 (Qld) concerning the
standard of care for professionals:
Standard of care for professionals
(1) A professional does not breach a duty arising from the provision of a
professional service if it is established that the professional acted in a way
that (at the time the service was provided) was widely accepted by peer
professional opinion by a significant number of respected practitioners in the
field as competent professional practice.
(2) However, peer professional opinion can not be relied on for the purposes
of this section if the court considers that the opinion is irrational or contrary
to a written law.
(3) The fact that there are differing peer professional opinions widely
accepted by a significant number of respected practitioners in the field
concerning a matter does not prevent any 1 or more (or all) of the opinions
being relied on for the purposes of this section.
(4) Peer professional opinion does not have to be universally accepted to be
considered widely accepted.
This is a return towards the Bolam principle of determining the standard of
care, although it does include an irrationality condition (clause 2) which
means that the court can still override professional opinion in rare
circumstances. We will examine this modified Bolam standard when we look
at the standard of care for diagnosis and treatment.
BUT - importantly for the area of disclosure, there is a final paragraph to the
section:
(5) This section does not apply to liability arising in connection with the
giving of (or the failure to give) a warning, advice or other information, in
relation to the risk of harm to a person, that is associated with the provision
by a professional of a professional service.
So disclosure was quarantined from the return to the modified Bolam test
for the standard of care. For disclosure, the Civil Liability Act implemented the
recommendations of the Ipp Review:
Proactive and reactive duty of doctor to warn of risk
(1) A doctor does not breach a duty owed to a patient to warn of risk, before
the patient undergoes any medical treatment (or at the time of being given
medical advice) that will involve a risk of personal injury to the patient,
unless the doctor at that time fails to give or arrange to be given to the
patient the information about the risk
MEDI7131 EPP1
(a) that a reasonable person in the patients position would, in the

circumstances, require to enable the person to make a reasonably informed
decision about whether to undergo the treatment or follow the advice; and
(b) that the doctor knows or ought reasonably to know the patient wants to
be given before making the decision about whether to undergo the treatment
or follow the advice.
Clause (a) is the proactive duty, while clause (b) is the reactive duty.
Now, recall the requirements for disclosure laid down in RvW:
"... 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."
The proactive and reactive duties concerning disclosure of risk in the new
legislation more or less restate the RvW requirements. However, some
commentators consider that the test is not as tough on doctors as the RvW
test, since being aware of what the particular patient would be likely to
attach significance to (RvW), is arguably more onerous than being aware of
what information the particular patient actually wants to be given (Civil
Liability Act) (see comments above at p4 para 4). Other commentators
consider that the difference will prove to be insignificant. In any event, the
standard for disclosure has remained more or less equivalent to the RvW
standard, and this makes the distinction between the legal standards for
diagnosis/treatment and disclosure much clearer.
Regarding the element of causation as it applies to disclosure, the Civil
Liability Act 2003 (Qld) states, inter alia, that
if it is relevant to deciding factual causation to decide what the person who
suffered harm would have done if the person who was in breach of the duty
had not been so in breach (a) the matter is to be decided subjectively in the light of all relevant
circumstances, subject to paragraph (b); and
(b) any statement made by the person after suffering the harm about what
he or she would have done is inadmissible except to the extent (if any)
that the statement is against his or her interest.
This appears to (a) affirm the subjective standard for the causation element,
as described above, but (b) excludes statements from the patient concerning
what s/he would have done had s/he been adequately warned. You can see
that, whereas the post - RvW courts had to be careful to avoid being
MEDI7131 EPP1
persuaded by injured patients hindsight bias, the new legislation seems to

rule out the possibility of hindsight bias arising.
Note that while a case-based common law approach to negligence has now
been displaced by a statutory regime, judges must still interpret all the terms
and clauses contained in the new legislation, when cases arise, and the
previous important cases (particularly those from the High Court) will continue
to be referred to.
INFORMED FINANCIAL CONSENT
A recent sub-species of informed decision-making has arisen for discussion
and action. This is so-called informed financial consent. The AMA and the
Commonwealth government have cooperated to increase the provision of
information regarding fees in relation to procedures and prostheses etc, in
order to reduce the incidence of patients discovering after the event that they
may be considerably more out of pocket than they anticipated.
(ref 6)
COACHING
Health coaching has evolved in recent years to provide assistance to
patients who lack confidence and/or skills to actively engage in doctor-patient
consultations. Coaching occurs most commonly in settings of chronic illness,
and is available through some call centres and through management
programs and patient support groups. There are also a number of patient
decision-aids being developed, increasingly on-line. Decision-aids and
coaching provide information and explanations, help clarify values and
wishes, and support deliberation and communication. There are many
operational barriers to developing these methods of assisting patients, but
there is some evidence that they can improve knowledge and communication,
and sometimes improve health outcomes. Concepts and practices concerning
health literacy, adult learning, coaching, better interpreter services, and so on
will be increasingly seen in Australia. For example, see
http://www.bupa.com.au/health-and-wellness/Programs-and-Support/MemberSupport-Programs/bupa-health-dialog.
(also see ref 9)

LOSS OF A CHANCE
Until recently, some negligence suits, including some involving failure to
disclose adequate information, were decided in favour of the patient-plaintiff
on the basis of the loss of a chance of a better medical outcome than what
occurred. This means that the case is decided, not on the balance of
probabilities that the doctors action or omission caused the harm, but by
proving that the chance of a better outcome was a possibility, even at a less
than 50% level of probability. However, in a recent High Court case, Tabet v
Gett, the court ruled that the common law in Australia does not allow a plaintiff
to obtain compensation on the basis of a loss of chance action, although
some commentators believe that there may remain some exceptions.

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Discipline of Medical Ethics, Law and Professional Practice

INTRODUCTION TO MEDICAL LAW

Malcolm Parker (SOM)

LEARNING RESOURCE: INTRODUCTION TO MEDICAL LAW

Discipline of Medical Ethics, Law and Professional Practice

LEARNING RESOURCE: INTRODUCTION TO MEDICAL LAW

Discipline of Medical Ethics, Law and Professional Practice

LEARNING RESOURCE: INTRODUCTION TO MEDICAL LAW

Discipline of Medical Ethics, Law and Professional Practice

AUTONOMY, PATERNALISM, COMPETENCE, INTERVENTION, REGULATION

Malcolm Parker (School of Medicine)

LEARNING RESOURCE: AUTONOMY, PATERNALISM, COMPETENCE, INTERVENTION, REGULATION

Discipline of Medical Ethics, Law and Professional Practice

Discipline of Medical Ethics, Law and Professional Practice

necessarily paternalistic, but depends on patient autonomy and can be seen to

What do these each mean, and how do they differ?

LEARNING RESOURCE: AUTONOMY, PATERNALISM, COMPETENCE, INTERVENTION, REGULATION

Discipline of Medical Ethics, Law and Professional Practice

Now consider medical practice

Discipline of Medical Ethics, Law and Professional Practice

Discipline of Medical Ethics, Law and Professional Practice

PATERNALISM, COERCION AND PERSUASION

LEARNING RESOURCE: AUTONOMY, PATERNALISM, COMPETENCE, INTERVENTION, REGULATION

Discipline of Medical Ethics, Law and Professional Practice

5. What principles and requirements should underpin a medical obligation to

Discipline of Medical Ethics, Law and Professional Practice

LEARNING RESOURCE: AUTONOMY, PATERNALISM, COMPETENCE, INTERVENTION, REGULATION

Discipline of Medical Ethics, Law and Professional Practice

Step 3 information gathering

[These steps are considered further in the L on Assessing Competence].

LEARNING RESOURCE: AUTONOMY, PATERNALISM, COMPETENCE, INTERVENTION, REGULATION

Discipline of Medical Ethics, Law and Professional Practice

Disturbance of body image, perfectionism, obsessionalism, selfconsciousness;

Many sufferers are thought to behave as they do in order to establish a measure of

LEARNING RESOURCE: AUTONOMY, PATERNALISM, COMPETENCE, INTERVENTION, REGULATION

Discipline of Medical Ethics, Law and Professional Practice

FROM PERSUASION TO INTERVENTION

LEARNING RESOURCE: AUTONOMY, PATERNALISM, COMPETENCE, INTERVENTION, REGULATION

Discipline of Medical Ethics, Law and Professional Practice

LEARNING RESOURCE: AUTONOMY, PATERNALISM, COMPETENCE, INTERVENTION, REGULATION

Discipline of Medical Ethics, Law and Professional Practice

THE DUTY OF CARE

Malcolm Parker (SOM)

5. Law Reform Act 1995 (Qld) s16. Available at

LEARNING RESOURCE: THE DUTY OF CARE

Discipline of Medical Ethics, Law and Professional Practice

Discipline of Medical Ethics, Law and Professional Practice

LEARNING RESOURCE: THE DUTY OF CARE

Discipline of Medical Ethics, Law and Professional Practice

Discipline of Medical Ethics, Law and Professional Practice

LEARNING RESOURCE: THE DUTY OF CARE

Discipline of Medical Ethics, Law and Professional Practice

LEARNING RESOURCE: THE DUTY OF CARE

Discipline of Medical Ethics, Law and Professional Practice

reasonable? How closely and directly affected by my action must someone be in

Discipline of Medical Ethics, Law and Professional Practice

Discipline of Medical Ethics, Law and Professional Practice

Discipline of Medical Ethics, Law and Professional Practice

Fundamentals of medical negligence

Discipline of Medical Ethics, Law and Professional Practice

Lowns v Woods [1996] Aust Torts Reports 81 376 (CA NSW)

LEARNING RESOURCE: THE DUTY OF CARE

Discipline of Medical Ethics, Law and Professional Practice

Discipline of Medical Ethics, Law and Professional Practice