Australia & New Zealand Society of Vascular Surgeons

The Duty Whilst the law has always recognised that a doctor has a duty to warn a patient of a material risk inherent in any proposed procedure or treatment, the High Court has formulated a higher standard required of doctors. “A risk will be considered material if, in the circumstances of the particular case, a reasonable person in the position of the patient, if warned of the risk, would be likely to attach significance to it, or if the medical doctor is, or should reasonably be, aware that the particular patient, if warned of the risk, would be likely to attach significance to it.” This places a high burden on practitioners to ensure that all material risks are considered, and that the particular circumstances of the patient are considered. Factors to Consider These can involve a number of factors:- * Would the risk influence the decisions of a reasonable person in the position of the patient? * The more drastic the intervention or procedure, the more necessary it is to inform of risks and consequences. * The desire for information by the patient necessitates greater disclosure. * In some cases, the temperament and health of the patient might be considered. * The existence of emergency situations, or lack of opportunity for proper counselling or discussion, can affect the obligations to disclose. * Special issues arise in relation to the obtaining of consent from giving adequate information to) children, teenagers and the intellectually disabled. Causation – Linking Loss to the Negligence Even where a doctor may not have given adequate information to a patient, the doctor is not automatically liable for the negligence, if it can be shown that the patient would otherwise have had the procedure or agreed to the treatment. Standard Consent and Information Sheets Standard information forms can have some use, but are no substitute for proper information to a patient. A simple form signed by a patient is not conclusive proof that valid consent has been obtained. Conclusion The ramifications for doctors are significant: * Doctors must have revised the way they communicate with their patients, particularly explaining the risks of procedures and treatment. * Doctors must consider the particular circumstances of each patient, and ensure that, as much as possible, adequate opportunity is given to the pre-treatment discussion. * Doctors should keep detailed notes and records of not just the treatment, but the advice and information conveyed to the patient prior to the treatment. * The guidelines issued by the National Health and Medical Research Council provide a good guide to the issues with which doctors should be concerned. They provide a general outline of the type of material that should be discussed with patients.