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Information Disclosure: A Distinctive Profile

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The Duty of Medical Practitioners and CAM/TCM Practitioners to Inform Competent Adult Patients about Alternatives

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Abstract

This chapter provides some background knowledge about a doctor’s duty to inform. It highlights the inappropriateness of uncritically applying the Bolam test to every aspect of health care, including information disclosure. To illustrate that health care is divisible and information disclosure is distinctive, three distinctions have been made in the law: between a doctor-oriented standard and a patient-oriented standard, between “medical judgment” and “layperson’s knowledge”, and between “information” and “materiality”. Under the patient-oriented standard of information disclosure and the “materiality” test, the “information” prong, such as that concerning the gravity, likelihood of the potential risks of treatments, and existence/availability of treatment options, is subject to medical judgment, but the “materiality” prong, i.e. whether or not a reasonable person in the patient’s position would attach significance to the undisclosed information, falls within human/layperson knowledge. The information/materiality dichotomy dictates that the judiciary can ask healthcare professionals to transcend the boundaries of professional opinion and give more patient-centred information.

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Notes

  1. 1.

    Reibl v. Hughes (1980) 114 D.L.R. (3d) 1, 8–9 (S.C.C.) (Supreme Court of Canada preferring to “abandon” the term because it “tends to confuse battery and negligence”); Rogers v. Whitaker (1992) 175 C.L.R. 479, 490 (HCA) (High Court of Australia sharing the view that the “somewhat amorphous” phrase of “informed consent” is “apt to mislead as it suggests a test of the validity of a patient’s consent”); Rosenberg v. Percival 2001 205 CLR 434, 440 (High Court of Australia Gleeson CJ warned against uncritical use of the American concepts, such as “patient’s right of self-determination” and “informed consent”, “which ought to be valuable currency, but which are susceptible to rhetorical inflation”). Despite these criticisms, the phrase “informed consent” has many academic and judicial supporters. It was acknowledged that the concept “informed consent” has been “a well accepted legal term that describes an area of law” with precision and honesty. See, Don Chalmers and Robert Schwartz (1993), 149. One commentator had embraced the idea that “once the law imposes a duty on the doctor to disclose to his patient information relating not only to the general nature and purpose of the proposed treatment, but also to the risks and dangers inherent therein, then, … it can be said that a single doctrine of informed consent exists.” See, Gerald Robertson (1981), 103. Kirby J. from High Court of Australia acknowledged that what the Rogers rule targeted are “the concerns that are commonly dealt with … as relevant to securing the ‘informed consent’ of a patient to invasive treatment”, and kept an open mind towards “legal and medical literature” on “informed consent” to support his reconsideration of the Rogers test. See, Rosenberg v. Percival 2001 205 CLR 434, 477. In the House of Lords case Chester v. Afshar, Lord Hope frequently utilised the concept “informed consent” when restating the English case law history on the issue of “the duty to warn”. See, Chester v. Afshar 2004 4 All ER 587, 601–604.

  2. 2.

    Rogers v. Whitaker (1992) 175 C.L.R. 479, 490 (HCA) (Mason CJ, Brennan, Dawson, Toohey and McHugh JJ).

  3. 3.

    Schloendorff v. The Society of New York Hospital, 105 N.E. 92, 93 (1914) (Justice Cardozo giving these frequently-quoted words: “Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages.”).

  4. 4.

    Marjorie Maguire Shultz (1985), 224 (noting that, under the battery analysis, “the patient’s wishes take priority over even the fully competent recommendation of a doctor”, and “the right to be secure against unconsented touching is close to absolute”); Harvey Teff (1993), 216 (noting that “an action for battery grounded in the right to bodily inviolability suggests the clearest possible repudiation of paternalism and vindication of patient choice”).

  5. 5.

    5First, the importance and weight of medical experts testimony and medical judgment is significantly reduced in the battery suits. In a battery suit, “the doctor normally may not invoke professional judgment or the exercise of a ‘therapeutic privilege’” (see, Harvey Teff 1993, 217). Second, battery does not require proof of causation. Third, battery is actionable per se, rendering proof of damage unnecessary. Fourth, battery “casts upon the defendant the burden of proving consent to what was done” (see, Reibl v. Hughes (1980) 114 D.L.R. (3d) 1, 9 (S.C.C.)). Moreover, the anti-social and culpable flavour inherent in battery makes common law battery a poor fit for most informed consent cases which involve a context of doctor-physician relationship. See, Natanson v. Kline, 350 P.2d 1093, 1100 (Kan. 1960); Howard v. University of Medicine, 800 A.2d 73,78 (N.J. 2002); Trogun v. Fruchtman, 207 N.W. 2d 297, 313; Sidaway v. Bethlem Royal Hospital Governors 1985 1 All ER 643, 650; John A Harrington (1996), 352; Gerald Robertson (1981), 124.

  6. 6.

    6For example, the Natanson case is a landmark case in the United States in the sense that it marked the transition in courts from the battery analysis to the negligence analysis. In the new context of information disclosure, the court still followed the logic of traditional professional negligence, i.e. “medical judgment – expert medical testimony – professional standard”, to support its physician-oriented holding. See, Natanson v. Kline, 350 P.2d 1093, 1106 (Kan. 1960).

  7. 7.

    7Alan Meisel (1977), 92 (“[t]he effect of the assimilation of informed consent to the negligence form of action was to transfer some of the old barriers to compensation to the informed-consent doctrine”); Harvey Teff (1993), 214 (there is a “lack of fit between rights-based analysis and the underlying theory of liability for negligence”).

  8. 8.

    Rogers v. Whitaker (1992) 175 C.L.R. 479, 490 (HCA) (noting that “nothing is to be gained by reiterating the expressions used in American authorities, such as “the patient’s right of self-determination” …. The right of self-determination is an expression which is, perhaps, suitable to cases where the issue is whether a person has agreed to the general surgical procedure or treatment, but is of little assistance in the balancing process that is involved in the determination of whether there has been a breach of the duty of disclosure”; adding that “the consent necessary to negative the offence of battery is satisfied by the patient being advised in broad terms of the nature of the procedure to be performed”).

  9. 9.

    9Bolam v. Friern Hospital Management Committee 1957 2 All ER 118, 122, per McNair J. (“A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. … Putting it the other way round, a doctor is not negligent, if he acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view.”).

  10. 10.

    10John Keown (1994), 16–19 (criticising the Bolam test as having a “corrosive effect on the development of English medical law”); Anasson v. Koziol unreported, ACTSC, BC9606317, 20 December 1996, Miles CJ, at [20] (“Some might regard Bolam as a case decided on its facts. It was not considered important enough to be published in the authorised reports.”).

  11. 11.

    11Shaw v. Doctor Diarmuid De Burca 2008 NIQB 151, at [25]; Haughey v. Newry & Mourne Health & Social Care Trust [2009] NIQB 53, at [53].

  12. 12.

    12Sidaway v. Bethlem Royal Hospital Governors 1985 1 All ER 643, (1985) AC 871.

  13. 13.

    13Sidaway v. Bethlem Royal Hospital Governors 1985 1 All ER 643, 659 (Lord Diplock), 661 (Lord Bridge), 664 (Lord Templeman).

  14. 14.

    14As far as the possibility of departure from tradition in the duty-to-warn cases is concerned, their Lordships’ attitudes had actually formed an ascending hierarchy – Lord Diplock, Lord Bridge of Harwich, Lord Templeman and Lord Scarman – with Lord Diplock almost unconditionally standing with the Bolam test and Lord Scarman extensively embracing the newly-developed, patients-oriented rules and drawing a clear, categorical distinction between diagnosis and treatment, on the one hand, and advice, on the other. Although the Sidaway case can be generally viewed as the House of Lord’s ultimate retention of the Bolam doctrine in the failure-to-disclose cases, only one Lord unreservedly stood with the Bolam test. See, Sidaway v. Bethlem Royal Hospital Governors 1985 1 All ER 643, 657–658 (Lord Diplock).

  15. 15.

    15The Court held that,

    In English jurisprudence the doctor’s relationship with his patient which gives rise to the normal duty of care to exercise his skill and judgment to improve the patient’s health in any particular respect in which the patient has sought his aid has hitherto been treated as a single comprehensive duty covering all the ways in which a doctor is called on to exercise his skill and judgment in the improvement of the physical or mental condition of the patient for which his services either as a general practitioner or as a specialist have been engaged. This general duty is not subject to dissection into a number of component parts to which different criteria of what satisfy the duty of care apply, such as diagnosis, treatment and advice (including warning of any risks of something going wrong however skillfully the treatment advised is carried out). … In modern medicine and surgery such dissection of the various things has to do in the exercise of his whole duty of care owed to his patient is neither meaningful nor medically practicable. … (emphasis added)

    It was added,

    To decide what risks the existence of which a patient should be voluntarily warned and the terms in which such warning, if any, should be given, having regard to the effect that the warning may have, is as much an exercise of professional skill and judgment as any other part of the doctor’s comprehensive duty of care to the individual patient, and expert medical evidence on this matter should be treated in just the same way. (emphasis added)

    See, Sidaway v. Bethlem Royal Hospital Governors 1985 1 All ER 643, 657–659, per Lord Diplock.

  16. 16.

    16Gold v. Haringey Health Authority 1988 1 QB 481 (involving nondisclosure of both “risks” and “alternatives”).

  17. 17.

    17Gold v. Haringey Health Authority 1988 1 QB 481, 488–490 (observing that “[t]o dissect a doctor’s advice into that given in a therapeutic context and that given in a contraceptive context would be to go against the whole thrust of the decision of the majority of the House of Lords in that case”).

  18. 18.

    18Rogers v. Whitaker (1992) 175 C.L.R. 479 (HCA).

  19. 19.

    19Johnson v. Biggs [2000] NSWCA 338 (24 November 2000, unreported, BC200007233), at [52] (“[u]nlike the United Kingdom, the standard of care in fulfilling that duty to warn is not determined solely or even primarily by reference to the practice followed or supported by a responsible body of opinion in the medical profession, though it is a useful guide. Rather this question is ultimately for the court to determine”); King v. South Eastern Area Health Service [2005] NSWSC 305 (Newman J., 8 April 2005, unreported, BC200505896), at [36]–[39] (“As far as the scope of the extent of the duty owed by a medical practitioner to a patient is concerned the common law in Australia has departed from that which pertains in England”).

  20. 20.

    20Reibl v. Hughes (1980) 114 D.L.R. (3d) 1, 13 (S.C.C.) (“To allow expert medical evidence to determine what risks are material and, hence, should be disclosed and, correlatively, what risks are not material is to hand over to the medical profession the entire question of the scope of the duty of disclosure, including the question whether there has been a breach of that duty. Expert medical evidence is, of course, relevant to findings as to the risks that reside in or are a result of recommended surgery or other treatment. It will also have a bearing on their materiality but this is not a question that is to be concluded on the basis of the expert medical evidence alone.”).

  21. 21.

    21Rogers v. Whitaker (1992) 175 C.L.R. 479, 489–490 (HCA) (“Whether a medical practitioner a medical practitioner carries out a particular form of treatment in accordance with the appropriate standard of care is a question in the resolution of which responsible professional opinion will have an influential, often a decisive, role to play; whether the patient has been given all the relevant information to choose between undergoing and not undergoing the treatment is a question of a different order. Generally speaking, it is not a question the answer to which depends upon medical standards or practices. Except in those cases where there is a particular danger that the provision of all relevant information will harm an unusually nervous, disturbed or volatile patient, no special medical skill is involved in disclosing the information, including the risks attending the proposed treatment. (footnote omitted)”).

  22. 22.

    22Rogers v. Whitaker (1992) 175 C.L.R. 479, 489 (HCA).

  23. 23.

    23Rogers v. Whitaker (1992) 175 C.L.R. 479, 489 (HCA).

  24. 24.

    24Rogers v. Whitaker (1992) 175 C.L.R. 479, 489 (HCA) (“In diagnosis and treatment, the patient’s contribution is limited to the narration of symptoms and relevant history; the medical practitioner provides diagnosis and treatment according to his or her level of skill. However, except in cases of emergency or necessity, all medical treatment is preceded by the patient’s choice to undergo it. … But the choice is, in reality, meaningless unless it is made on the basis of relevant information and advice. Because the choice to be made calls for a decision by the patient on information known to the medical practitioner but not to the patient, it would be illogical to hold that the amount of information to be provided by the medical practitioner can be determined from the perspective of the practitioner alone or, for that matter, of the medical profession.”)

  25. 25.

    25Rogers v. Whitaker (1992) 175 C.L.R. 479, 492 (HCA).

  26. 26.

    26Rogers v. Whitaker (1992) 175 C.L.R. 479, 493 (HCA) (emphasis added).

  27. 27.

    27Schiller v. Connah [2002] NSWSC 1264 (Taylor AJ, 11 June 2002, unreported, BC200208286), at [114], [115] (identifying four Rogers principles: (1) “a single comprehensive duty” theory; (2) all medical treatment is preceded by the patient’s “informed” choice; (3) medical standards or practices have less or no say in the context of information disclosure; (4) defining the “materiality” of a risk).

  28. 28.

    28Walker v. Sydney West Area Health Service [2007] NSWSC 526 (Simpson J, 25 May 2007, unreported, BC200703982), at [89]; Lowns v. Woods; Procopis v. Woods, NSWCA, unreported, 5 February 1996, BC9600091, Kirby P, Mahoney and Cole, JJA, at [16], per Kirby P (deeming the Rogers principle to be “one of general application, governing the relevant communications between a medical practitioner and a patient”).

  29. 29.

    29Lowns v. Woods; Procopis v. Woods, NSWCA, unreported, 5 February 1996, BC9600091, Kirby P, Mahoney and Cole, JJA, at [17] (emphasis added), per Kirby P.

  30. 30.

    30Lowns v. Woods; Procopis v. Woods, NSWCA, unreported, 5 February 1996, BC9600091, Kirby P, Mahoney and Cole, JJA (involving an allegation that the physician failed to inform parents of a child with a history of epileptic seizures of the availability and advisability of rectal diazepam (Valium) to control the seizure in exigencies; Kirby P, applying two different standards (the Bolam-Sidaway rule and the Rogers rule), reached the same conclusion; Mahoney JA, who reached the same pro-physician conclusion as Kirby P did, devoted most of his reasoning to a court’s respect for “a clinical decision”). See also José Miola (2009), 103 (observing that “the majority in Sidaway, despite following Bolam, was asserting what is essentially the same as the objective strand of the Rogers test – that while medical evidence is relevant to the determination of the duty to disclose, it is not decisive”).

  31. 31.

    31Johnson v. Biggs [2000] NSWCA 338 (24 November 2000, unreported, BC200007233), at [53] (“It is important to put the duty to warn in its therapeutic context.”); Darley v. Shale NSW (Common Law Division), Wood, J., 23 October 1992, unreported, BC9202762, at [20], per Wood J (involving “aspects of clinical judgment in relation to the inquiry made by the defendant and in relation to the decision to proceed to laparoscopy in preference to laparotomy”); Crisp v. Keng NSW (Common Law Division), Wood J, 2 December 1992, unreported, BC9201449, at [103], per Wood J (the instance case “involves aspects of clinical judgment in relation to the defendants’ decision to opt for conservative treatment of the haematoma and infection”, warranting the judicial respect for clinical judgment) (emphasis added).

  32. 32.

    32Howarth v. Adey [1996] 2 VR 535, at [31], [32], [37], [38] (On the one hand, the scope and content of the duty to inform about risks “depends upon principles which are not co-extensive with the principles which govern and inform a decision of negligent treatment and management”. On the other hand, the nature of informed consent claim “was logically interwoven with the [treatment] claim, the denial of the right to present it carried with it, … the prospect of no being able to present the case in a coherent fashion”.) (emphasis added).

  33. 33.

    33As a legislative response to “insurance crisis”, the reform aims to “limit[] liability and quantum of damages arising from personal injury and death”, by different ways, including reformulating the test for the standard of care. The reform also responded to the concern that “it has become too easy for plaintiffs in personal injury cases to establish liability for negligence on the part of defendants”. See, Commonwealth of Australia (2002), pages 9 and 25. As to Australian pre-reform and post-reform legal climate, please see David Ipp AO. 2007a. The politics, purpose and reform of the law of negligence. Australian Law Journal 81:456–464, at 456; David Ipp AO. 2007b. Themes in the law of Torts. ALJ 81:609.

  34. 34.

    34Not all Australian jurisdictions have enacted a Civil Liability Act. The Commonwealth and the state governments rejected uniform tort law reform. The states and territories in Australia chose to individually legislate to introduce some of the Ipp Committee’s recommendations, either by amending existing legislation or by introducing new legislation. The state civil liability legislation include: Australian Capital Territory: Civil Law (Wrongs) Act 2002; New South Wales: Civil Liability Act 2002; Queensland: Civil Liability Act 2003; South Australia: Civil Liability Act 1936; Tasmania: Civil Liability Act 2002; Victoria: Wrongs Act 1958; Western Australia: Civil Liability Act 2002.

  35. 35.

    35Civil Liability Act 2003 (Qld), s 22(1) (2) (3) (4); Civil Liability Act 2002 (Tas), s 22; Civil Liability Act 2002 (WA), s 5PB; Civil Liability Act 1936 (SA), s 41; Civil Liability Act 2002 (NSW), s 5O.

  36. 36.

    36For example, Civil Liability Act 2003 (Qld), s 22(1) (2) (3) (4) stipulates that: “(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.”

  37. 37.

    37Civil Liability Act 2003 (Qld), s 22(5), Civil Liability Act 2002 (NSW), s 5P; Civil Liability Act 1936 (SA), s 41(5); Civil Liability Act 2002 (Tas), s 22 (5). For example, Civil Liability Act 2003 (Qld), s 22(5) points out that the Section 22 “Standard of Care for Professionals” “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”. Section 21(1) of Civil Liability Act 2003 (Qld) separately stipulates that “[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 following information about the risk – (a) information that a reasonable person in the patient’s 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; (b) information 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”.

  38. 38.

    38Doyle v. Accident Compensation Corporation [1997] 3 NZLR 160 (HC), 165, per Fisher J. (in the context of “medical misadventure”); B v. Medical Council of NZ (Note) [2005] 3 NZLR 810 (involving professional conduct for disciplinary purposes).

  39. 39.

    39B v. Medical Council of NZ 8/7/96, Elias J, HC Auckland HC 11/96, noted at [2005] 3 NZLR 810.

  40. 40.

    40B v. Medical Council of NZ (Note) [2005] 3 NZLR 810, 811.

  41. 41.

    41B v. Medical Council of NZ (Note) [2005] 3 NZLR 810, 811 (emphasis added).

  42. 42.

    42Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulation 1996, Schedule.

  43. 43.

    43Right 4 of the Code of Rights, which is profession-oriented, is mostly suitable to be used in a context involving clinical judgment, such as diagnosis and treatment. Right 6 of the Code of Rights is a statutory acknowledgment of the distinctive aspects of information disclosure. Unlike Right 4, it is formulated in the consumers’ (patients’) perspective.

  44. 44.

    44Bolam v. Friern Hospital Management Committee [1957] 2 All ER 118, 121 (“[i]n the realm of diagnosis and treatment [involving medical expertise] there is ample scope for genuine difference of opinion”) (quoting Scottish case Hunter v. Hanley [1955] S.L.T. 213, 217).

  45. 45.

    45Chester v. Afshar [2004] 4 All ER 587, [2004] UKHL 41; [2005] 1 AC 32.

  46. 46.

    46Rogers v. Whitaker (1992) 175 C.L.R. 479, 487 (HCA) (citations omitted). In Australia, although legislation have kept a modified version of the Bolam test alive, the test was judicially abolished not only in an unusual non-disclosure case (Rogers), but also in a diagnosis and treatment case (Naxakis v. Western General Hospital, [1999] HCA 22; (1999) 162 ALR 540).

  47. 47.

    47Lord Woolf (2001), 8; ter Neuzen v. Korn, [1995] 3 S.C.R. 674; (1993) 103 D.L.R. (4th) 473; aff’d (1995) 127 D.L.R. (4th) 577 (SCC).

  48. 48.

    48Margaret Brazier and José Miola (2000), 108; John Keown (1994), 16 (“[j]udicial deference to medical opinion is especially objectionable when the issue in question falls outwith clinical competence”).

  49. 49.

    49Rogers v. Whitaker (1992) 175 C.L.R. 479, 490 (HCA).

  50. 50.

    50F. v. R. (1983) 33 S.A.S.R 189, 205 (The medical practice is “least likely to be decisive” when the allegation is of a failure to warn and where no information about the method of procedure or basis of diagnosis is required.).

  51. 51.

    51Sidaway v. Bethlem Royal Hospital Governors [1985] 1 All ER 643, 661, 664, per Lord Diplock, Lord Templeman.

  52. 52.

    52Rogers v. Whitaker (1992) 175 C.L.R. 479, 486–487 (HCA) (noting that if the law allows the Bolam principle to play a decisive role in the realm of providing information, the express desire of a particular patient for information “would logically be of little or no significance” since it is medical opinion that determines whether the risk should be disclosed).

  53. 53.

    53Karen Tickner (1995), 117 (highlighting the case Blyth v. Bloomsbury Health Authority [1993] 4 Med LR 151, where the Court found that “the question of what a plaintiff should be told in answer to a general enquiry cannot be divorced from the Bolam test any more than when no such enquiry is made.”).

  54. 54.

    54Rogers v. Whitaker (1992) 175 C.L.R. 479, 486–491(HCA) (In this case, although the patient incessantly questioned about the possible complications and expressed a keen interest in the outcome of the suggested procedure, the court encountered a body of opinion which held that an inquiry should have elicited a reply dealing with sympathetic ophthalmia only if it specifically directed to the possibility of the left eye being affected by the operation on the right eye.)

  55. 55.

    55Michael A. Jones (1999), 112 (noting that “[t]here is evidence that individual doctors find it difficult to identify a common practice in relation to information disclosure, even within a speciality and even for relatively common procedures”); Canterbury v. Spence, 464 F.2d 772, 783–784 (1972) (deeply suspecting the existence of custom in the realm of information disclosure: “the reality of any discernible custom reflecting a professional consensus [sic] on communication of option and risk information to patients is open to serious doubt”).

  56. 56.

    56F. v. R. (1983) 33 S.A.S.R 189, 191, per King C.J. (emphasis added).

  57. 57.

    57F. v. R. (1983) 33 S.A.S.R 189, 191, per King C.J.. See, Schloendorff v. The Society of New York Hospital, 105 N.E. 92, 93 (1914); Natanson v. Kline, 350 P.2d 1093, 1104 (Kan. 1960) (“each man is considered to be master of his own body, and he may, if he be of sound mind, expressly prohibit the performance of life-saving surgery, or other medical treatment. A doctor might well believe that an operation or form of treatment is desirable or necessary but the law does not permit him to substitute his own judgment for that of the patient by any form of artifice or deception.”).

  58. 58.

    58Canterbury v. Spence, 464 F.2d 772, 785 (1972) (in nondisclosure cases, “the governing standard is much more largely divorced from professional considerations” and “the factfinder is not invariably functioning in an area of such technical complexity that it must be bound to medical custom as an inexorable application of the community standard of reasonable care”); Cobbs v. Grant, 502 P.2d 1, 10 (1972) (“[t]he weighing of these risks against the individual subjective fears and hopes of the patient” does not involve expert skill); Wilkinson v. Vessey, 295 A.2d 676, 688 (R.I. 1972) (“[t]he decision as to what is or is not material is a human judgment, … which does not necessarily require the assistance of the medical profession. The patient’s right to make up his mind should not be delegated to a local medical group – many of whom have no idea as to his informational needs.”).

  59. 59.

    59Jaskoviak v. Gruver, 638 N.W. 2d 1, 8–9 (N.D. 2002).

  60. 60.

    60Cobbs v. Grant, 502 P.2d 1, 10 (1972); Aiken v. Clary, 396 S.W.2d 668, 674 (Mo. 1965); Woolley v. Henderson, 418 A.2d 1123, 1130 (Me. 1980).

  61. 61.

    61Bey v. Sacks, 789 A.2d 232, 238 (Pa. Super. 2001); Jaskoviak v. Gruver, 638 N.W. 2d 1, 9 (N.D. 2002).

  62. 62.

    62Canterbury v. Spence, 464 F.2d 772, 791–792 (1972) (medical experts are ordinarily indispensable “to identify and elucidate for the factfinder the risks of therapy and the consequences of leaving existing maladies untreated”).

  63. 63.

    63Reibl v. Hughes (1980) 114 D.L.R. (3d) 1, 13 (S.C.C.); Korman v. Mallin, 858 P.2d 1145, 1149 (Alaska 1993); Canterbury v. Spence, 464 F.2d 772, 792(1972); Jaskoviak v. Gruver, 638 N.W. 2d 1, 8–9 (N.D. 2002); Bey v. Sacks, 789 A.2d 232, 238–239(Pa. Super. 2001).

  64. 64.

    64Natanson v. Kline, 350 P.2d 1093, 1106 (Kan. 1960) (“The duty of the physician to disclose, … is limited to those disclosure which a reasonable medical practitioner would make under the same or similar circumstances. How the physician may best discharge his obligation to the patient in this difficult situation involves primarily a question of medical judgment.”); Aiken v. Clary, 396 S.W.2d 668, 674 (Mo. 1965) (holding that the question of what disclosure of risks should be made in a particular situation is a question of “whether defendant doctor in that particular situation failed to adhere to a standard of reasonable care”, and expert medical evidence on what a reasonably prudent practitioner would disclose is necessary); Woolley v. Henderson, 418 A.2d 1123, 1131 (Me. 1980) (holding that “the scope of a physician’s duty to disclose is measured by those communications a reasonable medical practitioner in that branch of medicine would make under the same or similar circumstances and that the plaintiff must ordinarily establish this standard by expert medical evidence”).

  65. 65.

    65Canterbury v. Spence, 464 F.2d 772, 786 (1972); Cobbs v. Grant, 502 P.2d 1, 10 (1972); Woolley v. Henderson, 418 A.2d 1123, 1129 (Me. 1980).

  66. 66.

    66Canterbury v. Spence, 464 F.2d 772, 786–787 (1972) ( “the test for determining whether a particular peril must be divulged is its materiality to the patient’s decision: all risks potentially affecting the decision must be unmasked”; “[a] risk is … material when a reasonable person, in what the physician knows or should know to be the patient’s position, would be likely to attach significance to the risk or cluster of risks in deciding whether or not to forgo the proposed therapy”); Woolley v. Henderson, 418 A.2d 1123, 1129 (Me. 1980).

  67. 67.

    67Annotation, Modern Status of Views As to General Measure of Physician’s Duty to Inform Patient of Risks of Proposed Treatment, 88 A.L.R 3d 1008, §§3, 6–7 (1979 and Supp. 1995).

  68. 68.

    68Reibl v. Hughes [1980] 2 SCR 880, (1980) 114 D.L.R. (3d) 1 (S.C.C.) (declining to allow expert medical testimony to have a determinative or conclusive say in determining the materiality of certain risks).

  69. 69.

    69Rogers v. Whitaker (1992) 175 C.L.R. 479 (HCA).

  70. 70.

    70Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulation 1996, Schedule, Right 6.

  71. 71.

    71Geoghegan v. Harris [2000] 3 IR 536, 549, per Kearns J. (“The application of the reasonable patient test seems more logical in respect of disclosure. This would establish the proposition that, as a general principle, the patient has the right to know and the practitioner a duty to advise of all material risks associated with a proposed form of treatment.”); Fitzpatrick v. White [2008] 3 IR 551, 563–564, at [33], [35] per Kearns J.(“the patient centred test is preferable, and ultimately more satisfactory from the point of view of both doctor and patient alike, than any ‘doctor centred’ approach…”).

  72. 72.

    72James A. Bulen (2003), 336 (but holding that physician-oriented disclosure is problematic because it creates a circular, potentially biased process in which medical community norms shape disclosure standards designed to protect individuals who typically are not members of that community). See also, José Miola (2009), 76–108 (talking about “material risks” in the context of doctor-oriented Bolam-Sidaway line of authorities).

  73. 73.

    73Compare, José Miola (2009), 105 (claiming that there is little difference between the Rogers test and ‘new’ Bolam approach because both just abandon the decisiveness of medical evidence and do not make medical evidence irrelevant); Sara Fovargue and José Miola (2010), 13–14 (reinterpreting Sidaway and formulating three approaches of deciding whether a risk is material: by courts, by medical profession, and by patients).

  74. 74.

    74Rogers v. Whitaker (1992) 175 C.L.R. 479, 490 (HCA) (ending with the qualification that “[t]his duty is subject to the therapeutic privilege”).

  75. 75.

    75Rosenberg v. Percival [2001] 205 CLR 434, 459 per Gummow J; 500, per Callinan J.

  76. 76.

    76Rosenberg v. Percival [2001] 205 CLR 434, 482–483, per Kirby J.

  77. 77.

    77Rosenberg v. Percival [2001] 205 CLR 434, 459 per Gummow J.

  78. 78.

    78Rosenberg v. Percival [2001] 205 CLR 434, 500, per Callinan J.

  79. 79.

    79Rosenberg v. Percival [2001] 205 CLR 434, 459 per Gummow J.

  80. 80.

    80Rosenberg v. Percival [2001] 205 CLR 434, 459 per Gummow J.

  81. 81.

    81Rosenberg v. Percival [2001] 205 CLR 434, 500, per Callinan J.

  82. 82.

    82Rosenberg v. Percival [2001] 205 CLR 434, 478, per Kirby J.

  83. 83.

    83Chappel v. Hart (1998) 195 CLR 232, 272, per Kirby J.

  84. 84.

    84Rosenberg v. Percival [2001] 205 CLR 434.

  85. 85.

    85In Rosenberg v. Percival, Kirby J. admitted that the Rogers rule is “undoubtedly strict one”, and was open-minded towards any suggestion of reconsidering the ambit of the rule. His Honour highlighted some considerations that may support arguments suggesting confining the Rogers rule. These considerations include: (1) some patients’ wish of not being unsettled by unnecessary disclosure; (2) patient’s imperfect understanding of risks; (3) time constraints on doctors to do the disclosure task; (4) the cost-effectiveness of disclosure; (5) the disclosure rule being simplified as “a single instance of warning” rather than being viewed as “a continuous dialogue”; (5) the increase in malpractice litigation and the emergence of defensive medicine. His Honour admitted that such considerations may contribute to thinking that the content of the duty to warn should be “realistic and achievable”. However, his Honour concluded that “[n]o reason has been shown to reformulate [the Rogers test] more narrowly”. To the contrary, his Honour highlighted the following considerations that are supportive of the view that stringency of the Rogers test deserves to be unshaken: (1) a recognition of individual autonomy and a wider appreciation of basic human rights and human dignity; (2) defects of communication between doctors and patients; (3) conflicts of interests which a health provider may face; (4) the value of the symbolism which legal principles may afford; (5) the fact that giving sufficient warning is actually likely to diminish recriminations and litigation following disappointment after treatment. See, Rosenberg v. Percival [2001] 205 CLR 434, 476–481. Also see, Rosenberg v. Percival [2001] 205 CLR 434, 501 (Callinan J.: “The decision in Rogers v. Whitaker has been received with some consternation by the medical profession…. The common law does however evolve, albeit usually incrementally, with the result that practices and conduct may have to be changed to accord with it. ”).

  86. 86.

    86This line of categorisation was used in Fitzpatrick v. White [2008] 3 IR 551, 560 at [25] per Kearns J.( the Bolam-Sidaway authorities “established that a medical practitioner’s duty to warn was to be assessed in accordance with the practice accepted at the time as proper by a responsible body of medical opinion. While the decision as to what risks should be disclosed to the particular patient to enable him to make a rational choice whether to undergo the particular treatment was primarily a matter of clinical judgment, the disclosure of a particular risk of serious adverse consequences might, in a given case, be so obviously necessary for the patient to make an informed choice that no reasonably prudent doctor could fail to disclose the risk, and if there was such a failure, the medical practitioner could be found in breach of the duty to disclose” (emphasis added)).

  87. 87.

    87Pearce v. United Bristol Healthcare NHS Trust (1999) 48 BMLR 118; [1999] PIQR 53.

  88. 88.

    88Pearce v. United Bristol Healthcare NHS Trust (1998) 48 BMLR 118, 124; [1999] PIQR 53, 59.

  89. 89.

    89Chester v. Afshar [2004] 4 All ER 587, [2004] UKHL 41; [2005] 1 AC 32.

  90. 90.

    90Chester v. Afshar [2004] 4 All ER 587, 593–594, paras. 15, 16.

  91. 91.

    91Chester v. Afshar [2004] 4 All ER 587, 593–594, para. 14.

  92. 92.

    92Birch v. University College Hospitals NHS Trust [2008] EWHC 2237 (QB), at [72].

  93. 93.

    93Fitzpatrick v. White [2008] 3 IR 551, 560 at [26] per Kearns J.

  94. 94.

    94Fitzpatrick v. White [2008] 3 IR 551, 564 at [35] per Kearns J. (“I would see as more reasonable for those cases the test outlined by Lord Woolf, namely, that if there is a significant risk which would affect the judgment of a reasonable patient, then in the normal course it is the responsibility of a doctor to inform the patient of that significant risk.”).

  95. 95.

    95Fitzpatrick v. White [2008] 3 IR 551, 564 at [35] per Kearns J.

  96. 96.

    96Wilkinson v. Vessey, 295 A.2d 676, 689 (R.I. 1972) (but confining to information about “risk or risks”). See also, Rogers v. Whitaker (1992) 175 C.L.R. 479, 490 (HCA); Fitzpatrick v. White [2008] 3 IR 551, 564 at [35] per Kearns J.

  97. 97.

    97Canterbury v. Spence, 464 F.2d 772, 787–791 (USA, non-disclosure of risks); Sicard v. Sendziak, 2008 ABQB 690, at [116] (Court of Queen’s Bench of Alberta) (Canada, non-disclosure of alternative treatments).

  98. 98.

    98England and Australia favour a subjective test of causation, i.e. whether the particular patient (i.e., the plaintiff) would have consented to the procedure after being informed of the risk. See, England: Chatterton v. Gerson, (1981) 1 QB 432; Hills v. Potter, (1984) 1 WLR(4). Australia: Rogers v. Whitaker (1992) 175 C.L.R. 479, 490 (HCA); Chappel v. Hart (1998) 195 CLR 232, 272; Ellis v. Wallsend District Hospital [1989] 17 NSWLR 553 (C.A.); Civil Liability Act 2003 (Qld) s 11(3); Civil Liability Act 2002 (NSW) s 5D (3); Civil Liability Act 2002 (Tas) s 13(3); Civil Liability Act 2002 (WA) s 5C(3). Canada has adopted an objective or a modified objective approach to causation in informed consent cases. The objective test is one which determines whether a reasonable or prudent person in the patient’s position would have consented to the treatment had the information been disclosed. See, Reibl v. Hughes (1980) 114 D.L.R. (3d) 1, 17 (S.C.C.); Arndt v. Smith (1997), 148 D.L.R. (4th) 48, 51(S.C.C.).

  99. 99.

    99Barnett v. Chelsea & Kensington Hospital Management Committee [1969] 1 QB 428.

  100. 100.

    100Bonnington Castings Ltd v. Wardlaw [1956] AC 613.

  101. 101.

    101Ultramares Corp. v. Touche (1931) 255 N. Y. 170, 174 N. E. 441 (in the words of Cardozo, J.).

  102. 102.

    102Palsgraf v. Long Island Rail Road Co., 248 N.Y. 339, 162 N.E.99 (N.Y. 1928). The plaintiff, Palsgraf, was hit by scales that fell on her as she waited on a train platform. The scales fell because of a far-away commotion. A train conductor had run to help a man into a departing train. The man was carrying a package as he jogged to jump in the train door. The package had fireworks in it. The conductor mishandled the passenger or his package, causing the package to fall. The fireworks slipped and exploded on the ground causing shockwaves to travel through the platform. As a consequence, the scales fell. Because Palsgraf was hurt by the falling scales, she sued the train company who employed the conductor for negligence.

  103. 103.

    103Canterbury v. Spence, 464 F.2d 772, 787 (1972).

  104. 104.

    104Canterbury v. Spence, 464 F.2d 772, 787 (1972).

  105. 105.

    105Canterbury v. Spence, 464 F.2d 772, 786 (1972).

  106. 106.

    106Canterbury v. Spence, 464 F.2d 772, 786 (1972).

  107. 107.

    107Canterbury v. Spence, 464 F.2d 772, 787 (1972).

  108. 108.

    Commonwealth of Australia (2002), p. 47, para. 3.44. Some legislation in Australia followed the Panel’s recommendations. For example, Section 50 of Wrongs Act 1958 (Vic) provides that “[a] person (the defendant) who owes a duty of care to another person (the plaintiff) to give a warning or other information to the plaintiff in respect of a risk or other matter, satisfies that duty of care if the defendant takes reasonable care in giving that warning or other information” (emphasis added).

  109. 109.

    Commonwealth of Australia (2002), p. 47, para. 3.46.

  110. 110.

    110Canterbury v. Spence, 464 F.2d 772, 787 (1972).

  111. 111.

    111Canterbury v. Spence, 464 F.2d 772, 787 (1972).

  112. 112.

    112Canterbury v. Spence, 464 F.2d 772, 788 (1972).

  113. 113.

    113F. v. R. (1983) 33 S.A.S.R 189, 192–193, per King C.J.

  114. 114.

    114Rosenberg v. Percival [2001] 205 CLR 434, 458, per Gummow J.

  115. 115.

    115Rosenberg v. Percival [2001] 205 CLR 434, 458, per Gummow J.

  116. 116.

    116Rosenberg v. Percival [2001] 205 CLR 434, 458, per Gummow J.

  117. 117.

    117Rosenberg v. Percival [2001] 205 CLR 434, 458–459, per Gummow J.

  118. 118.

    118Rosenberg v. Percival [2001] 205 CLR 434, 459, per Gummow J.

  119. 119.

    119Canterbury v. Spence, 464 F.2d 772, 788 (1972).

  120. 120.

    120Canterbury v. Spence, 464 F.2d 772, 787 (1972).

  121. 121.

    Canterbury v. Spence, 464 F.2d 772, 787–788 (1972).

  122. 122.

    Please see, Burke, R (on the application of) v. General Medical Council & Ors [2005] EWCA Civ 1003, [2006] QB 273, [2005] 3 WLR 1132, para. [83]. Although the Court of Appeal refused a more interventionist approach towards medical practice and professional Guidance and preferred a more deferential approach, it noted that: “It is in our view of the utmost importance that the Guidance should be understood and implemented at every level throughout the National Health Service and throughout the medical profession. People in the unhappy position of [the patients] are entitled to have confidence that they will be treated properly and in accordance with good practice, and that they will not be ignored or patronised because of their disability. Having produced the Guidance, the task of the GMC, it seems to us, is to ensure that it is vigorously promulgated, taught, understood and implemented at every level and in every hospital”(emphasis added).

  123. 123.

    Jonathan Montgomery (2006), 207 (highlighting that a series of scandals undermined the trust and shattered the illusion that the regulation of healthcare does not require the same legal scrutiny as other spheres of activity).

  124. 124.

    Jonathan Montgomery (2006), 198 (acknowledging that the moral problems of rationing are masked under the guise of clinical judgment).

  125. 125.

    Ian Kennedy (1988), 24 (contending that as the concepts of health and ill health have been expanded enormously without rigorous intellectual examination, the sphere of alleged unique competence of the doctor has correspondingly expanded).

  126. 126.

    126Ian Kennedy (1988), 24 (noting that there are countless decisions taken by doctors which are not medical, but rather involve economic analysis, political judgments, philosophical thinking and moral theory).

  127. 127.

    Natanson v. Kline, 350 P.2d 1093, 1106 (Kan. 1960); Aiken v. Clary, 396 S.W.2d 668, 674 (Mo. 1965); Woolley v. Henderson, 418 A.2d 1123, 1131 (Me. 1980).

  128. 128.

    Bolam v. Friern Hospital Management Committee [1957] 2 All ER 118, [1957] 1 WLR 582.

  129. 129.

    129Sidaway v. Bethlem Royal Hospital Governors [1985] 1 All ER 643, (1985) AC 871.

  130. 130.

    Chester v. Afshar [2004] 4 All ER 587, 603, para. 57, per Lord Hope of Craighead (indicating that English Bolam test is a reasonable doctor standard).

  131. 131.

    131Chester v. Afshar [2004] 4 All ER 587, 601, para. 52, per Lord Hope of Craighead.

  132. 132.

    Scott v. Bradford, 606 P.2d 554, 557 (Okla. 1979) (citing Katz, Informed Consent – A fairy Tale? 39 U. Pitt. L. Rev. 137, 143 (1977)).

  133. 133.

    Canterbury v. Spence, 464 F.2d 772, 784–786 (1972); Largey v. Rothman, 540 A.2d 504, 508 (N.J. 1988); Wilkinson v. Vessey, 295 A.2d 676, 687 (R.I. 1972) (the physician-oriented standard “relegates the patient’s right to make an informed election to a position of secondary importance because it measures that right entirely in terms of standards adopted by those whose obligation is to inform”; “[t]he keystone of [the] doctrine [of informed consent] is every competent adult’s right to forego treatment, or even cure, if it entails what for him are intolerable consequences or risks however unwise his sense of values may be in the eyes of the medical profession, or even the community.”).

  134. 134.

    ter Neuzen v. Korn, (1993) 103 D.L.R. (4th) 473; aff’d (1995) 127 D.L.R. (4th) 577, 590 (SCC).

  135. 135.

    135ter Neuzen v. Korn, (1993) 103 D.L.R. (4th) 473; aff’d (1995) 127 D.L.R. (4th) 577, 590 (SCC).

  136. 136.

    136ter Neuzen v. Korn, (1993) 103 D.L.R. (4th) 473; aff’d (1995) 127 D.L.R. (4th) 577, 592 (SCC).

  137. 137.

    137ter Neuzen v. Korn, (1993) 103 D.L.R. (4th) 473; aff’d (1995) 127 D.L.R. (4th) 577, 592 (SCC).

  138. 138.

    See, Aiken v. Clary, 396 S.W.2d 668, 674 (Mo. 1965); Natanson v. Kline, 350 P.2d 1093, 1106 (Kan. 1960) (“The duty of the physician to disclose, … is limited to those disclosures which a reasonable medical practitioner would make under the same or similar circumstances. How the physician may best discharge his obligation to the patient in this difficult situation involves primarily a question of medical judgment. So long as the disclosure is sufficient to assure an informed consent, the physician’s choice of plausible courses should not be called into question if it appears, all circumstances considered, that the physician was motivated only by the patient’s best therapeutic interests and he proceeded as competent medical men would have done in a similar situation. ”(emphasis added)); Smith v. Auckland Hospital Board, [1964] NZLR 241, 248 (declining to distinguish between “the realm of diagnosis or technique” and “the area of advice”; being reversed in Smith v. Auckland Hospital Board, [1965] NZLR 191 where the Court of Appeal shifted the emphasis to a particular, special or somewhat exceptional/uncommon circumstance – the patient’s specific inquiry).

  139. 139.

    Cobbs v. Grant, 502 P.2d 1, 10 (1972); Woolley v. Henderson, 418 A.2d 1123, 1130 (Me. 1980) (“[w]hether the physician has acted unreasonably is often a question of professional judgment. In determining whether and how much he should disclose, the physician must consider the probable impact of disclosure on the patient, taking into account his peculiar knowledge of the patient’s psychological, emotional and physical condition, and must evaluate the magnitude of the risk, the frequency of its occurrence and the viability of alternative therapeutic measures.” (emphasis added)); Woolley v. Henderson, 418 A.2d 1123, 1130 (Me. 1980) (noting that medical evidence is necessary to identify the known risks of treatment, the nature of available alternatives and the cause of any injury suffered by the plaintiff).

  140. 140.

    140Aiken v. Clary, 396 S.W.2d 668, 674 (Mo. 1965) (“[t]his determination involves medical judgment as to whether disclosure of possible risks may have such an adverse effect on the patient as to jeopardize success of the proposed therapy, no matter how expertly performed.”); Largey v. Rothman, 540 A.2d 504, 507 (N.J. 1988) (alleging that only a physician can effectively estimate both the psychological and physical consequences that a risk inherent in a medical procedure might produce in a patient); Rogers v. Whitaker (1992) 175 C.L.R. 479, 490 (HCA).

  141. 141.

    141Sidaway v. Bethlem Royal Hospital Governors [1985] 1 All ER 643, 649, per Lord Scarman (dissenting).

  142. 142.

    142Sidaway v. Bethlem Royal Hospital Governors [1985] 1 All ER 643, 652, per Lord Scarman (dissenting).

  143. 143.

    143Rogers v. Whitaker (1992) 175 C.L.R. 479, 490 (HCA). However, the Court acknowledged the necessity of a physician’s skills in communicating information.

  144. 144.

    144Cobbs v. Grant, 8 Cal. 3d 229, 502 P.2d 1, 104 Cal. Rptr. 505 (1972).

  145. 145.

    145Cobbs v. Grant, 502 P.2d 1, 10 (1972).

  146. 146.

    146Cobbs v. Grant, 502 P.2d 1, 10 (1972).

  147. 147.

    147Cobbs v. Grant, 502 P.2d 1, 10 (1972).

  148. 148.

    148Wilkinson v. Vessey, 295 A.2d 676 (R.I. 1972).

  149. 149.

    Wilkinson v. Vessey, 295 A.2d 676, 688 (R.I. 1972) (emphasis added). See also, Canterbury v. Spence, 464 F.2d 772, 785 (1972) (noting that, in nondisclosure cases, “the governing standard is much more largely divorced from professional considerations” and “the factfinder is not invariably functioning in an area of such technical complexity that it must be bound to medical custom as an inexorable application of the community standard of reasonable care”).

  150. 150.

    150Burke, R (on the application of) v. The General Medical Council Rev 1 [2004] 2 FLR 1121, [2005] 2 WLR 431, [2004] EWHC 1879 (Admin), [2005] QB 424, para. [97] (citing an example involving one treatment (chemotherapy) and two patients (one is anxious to prolong his life as long as possible, irrespective of the quality of his life, because he is desperate to live long enough to see his daughter married or his first grandchild born; the other is determined to complete some project – a book, perhaps, or a work of art – for which he needs a clear mind free of the unpleasant side effects); noting that doctors are “not qualified to” take the ultimate decision about whether to undergo treatment).

  151. 151.

    151Sidaway v. Bethlem Royal Hospital Governors (1985) AC 871, 884 (per Lord Scarman).

  152. 152.

    152Sidaway v. Bethlem Royal Hospital Governors (1985) AC 871, 884 (per Lord Scarman) (emphasis added).

  153. 153.

    153USA: Canterbury v. Spence, 464 F.2d 772, 786–788 (1972) (“the test for determining whether a particular peril must be divulged is its materiality to the patient’s decision: all risks potentially affecting the decision must be unmasked”; “[a] risk is … material when a reasonable person, in what the physician knows or should know to be the patient’s position, would be likely to attach significance to the risk or cluster of risks in deciding whether or not to forgo the proposed therapy”; the information that demands a communication may include “the inherent and potential hazards of the proposed treatment, the alternatives to that treatment, if any, and the results likely if the patient remains untreated”); Wilkinson v. Vessey, 295 A.2d 676, 689 (R.I. 1972) (materiality may be said to be “the significance a reasonable person, in what the physician knows or should know is his patient’s position, would attach to the disclosed risk or risks in deciding whether to submit or not to submit to surgery or treatment”). Australia: Rogers v. Whitaker (1992) 175 C.L.R. 479, 490 (HCA) (“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.”). Ireland: Fitzpatrick v. White [2008] 3 IR 551, 564 at [35] per Kearns J (“a risk may be seen as 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”).

  154. 154.

    154Jaskoviak v. Gruver, 638 N.W. 2d 1, 8–9 (N.D. 2002).

  155. 155.

    155Reibl v. Hughes (1980) 114 D.L.R. (3d) 1, 13 (S.C.C.).

  156. 156.

    156Reibl v. Hughes (1980) 114 D.L.R. (3d) 1, 13 (S.C.C.).

  157. 157.

    157Commonwealth of Australia 2002, p. 45, para. 3.37.

  158. 158.

    158Jaskoviak v. Gruver, 638 N.W. 2d 1, 9 (N.D. 2002) (quoting Winkjer v. Herr, 277 N.W.2d 579, 588 (N.D. 1979)).

  159. 159.

    159Bey v. Sacks, 789 A.2d 232, 238 (Pa. Super. 2001).

  160. 160.

    160Canterbury v. Spence, 464 F.2d 772, 792(1972) (citations omitted).

  161. 161.

    161F. v. R. (1983) 33 S.A.S.R 189.

  162. 162.

    F. v. R. (1983) 33 S.A.S.R 189, 192–193, per King C. J. Echoing the five factors, Gummow J., in the Rosenberg v. Percival case, observed that: (1) Among the factors that need to be considered, “the extent or severity of the potential injury” and “the likelihood of the injury actually occurring” are two matters that are of great importance in cases of failure to warn. They should be considered together. (2) They need to be weighed against the circumstances of the patient. (3) The circumstances may include: (a) the patient’s need for the operation; (b) the existence of reasonably available and satisfactory alternative treatments; (c) whether the procedure is elective rather than life saving. See, Rosenberg v. Percival [2001] 205 CLR 434, 458–459, per Gummow J.

  163. 163.

    F. v. R. (1983) 33 S.A.S.R 189, 192.

  164. 164.

    F. v. R. (1983) 33 S.A.S.R 189, 192, per King C.J. (emphasis added).

  165. 165.

    F. v. R. (1983) 33 S.A.S.R 189, 192.

  166. 166.

    F. v. R. (1983) 33 S.A.S.R 189, 192.

  167. 167.

    F. v. R. (1983) 33 S.A.S.R 189, 192.

  168. 168.

    F. v. R. (1983) 33 S.A.S.R 189, 192.

  169. 169.

    It needs to be noted that many civil liability legislation in Australia have re-formulated the rules of “professional negligence” along the line of the Bolam test and the Bolitho rule. It applies to all professions, not just doctors. See, Civil Liability Act 2003 (Qld), s 22(1) (2) (3) (4); Civil Liability Act 2002 (Tas), s 22; Civil Liability Act 2002 (WA), s 5PB; Civil Liability Act 1936 (SA), s 41; Civil Liability Act 2002 (NSW), s 5O.

References

  • Amirthalingam, Kumaralingam. 2003. Anglo-Australian law of medical negligence – Towards convergence? Torts Law Journal 11: 117–135.

    Google Scholar 

  • Brazier, Margaret, and José Miola. 2000. Bye-bye Bolam: A medical litigation revolution? Medial Law Review 8: 85–114.

    Article  Google Scholar 

  • Bulen, James A. 2003. Complementary and alternative medicine: Ethical and legal aspects of informed consent to treatment. The Journal of Legal Medicine 24: 331–358.

    Article  Google Scholar 

  • Chalmers, Don, and Robert Schwartz. 1993. Rogers v. Whitaker and informed consent in Australia: A fair dinkum duty of disclosure. Medical Law Review 1: 139–159.

    Article  Google Scholar 

  • Commonwealth of Australia. 2002. Review of the law of negligence: Final report. http://revofneg.treasury.gov.au/content/review2.asp. Accessed 22 July 2008.

  • David Ipp, A.O. 2007a. The politics, purpose and reform of the law of negligence. Australian Law Journal 81: 456–464.

    Google Scholar 

  • David Ipp, A.O. 2007b. Themes in the law of Torts. ALJ 81: 609.

    Google Scholar 

  • Fovargue, Sara, and José Miola. 2010. How much information is “enough”? Clinical Ethics 5: 13–15.

    Article  Google Scholar 

  • Gatter, Ken Marcus. 1999. Protecting patient-doctor discourse: Informed consent and deliberative autonomy. Oregon Law Review 78: 941–993.

    Google Scholar 

  • Harrington, John A. 1996. Privileging the medical norm: Liberalism, self-determination and refusal of treatment. Legal Studies 16: 348–367.

    Article  Google Scholar 

  • Jones, Michael A. 1999. Informed consent and other fairy stories. Medical Law Review 7: 103–134.

    Article  Google Scholar 

  • Kennedy, Ian. 1988. Treat me right: Essays in medical law and ethics. Oxford: Clarendon.

    Google Scholar 

  • Keown, John. 1994. Burying Bolam: Informed consent down under. Cambridge Law Journal 53: 16–19.

    Article  Google Scholar 

  • Manning, Joanna. 2007. The standard of care and expert evidence of accepted practice in medical negligence. JLM 15: 394–407.

    Google Scholar 

  • Mason, Kenyon, and Douglas Brodie. 2005. Bolam, Bolam – Wherefore art Thou Bolam? Edinburgh Law Review 9: 298–306.

    Article  Google Scholar 

  • McNichols, William J. 1995. Informed consent liability in a ‘material information’ jurisdiction: What does the future portend? Oklahoma Law Review 48: 711–753.

    Google Scholar 

  • Meisel, Alan. 1977. The expansion of liability for medical accidents: From negligence to strict liability by way of informed consent. Nebraska Law Review 56: 51–152.

    Google Scholar 

  • Miola, José. 2009. On the materiality of risk: Paper tigers and panaceas. Medical Law Review 17: 76–108.

    Article  Google Scholar 

  • Montgomery, Jonathan. 2006. Law and the demoralisation of medicine. Legal Studies 26: 185–210.

    Article  Google Scholar 

  • Morris, Grant H. 2002. Dissing disclosure: Just what the doctor ordered. Arizona Law Review 44: 313–370.

    Google Scholar 

  • Parker, Malcolm. 2003. Reforming the law of medical negligence: Solutions in search of a problem. Torts Law Journal 11: 136–164.

    Google Scholar 

  • Robertson, Gerald. 1981. Informed consent to medical treatment. The Law Quarterly Review 97: 102–126.

    Google Scholar 

  • Shuaib, Farid Sufian. 2000. Rogers v. Whitaker: The end of the Bolam’s saga in medical negligence cases in Malaysia? Professional Negligence 16: 25–30.

    Google Scholar 

  • Shultz, Marjorie Maguire. 1985. From informed consent to patient choice: A new protected interest. The Yale Law Journal 95: 219–299.

    Article  Google Scholar 

  • Skene, Loane. 2008. Law and medical practice: Rights, duties, claims and defences, 3rd ed. Chatswood: LexisNexis Butterworths.

    Google Scholar 

  • Teff, Harvey. 1985. Consent to medical procedures: Paternalism, self-determination or therapeutic alliance? The Law Quarterly Review 101: 432–453.

    Google Scholar 

  • Teff, Harvey. 1993. Medical models and legal categories: An English perspective. Journal of Contemporary Health Law and Policy 9: 211–232.

    Google Scholar 

  • Tickner, Karen. 1995. Rogers v. Whitaker – Giving patients a meaningful choice. Oxford Journal of Legal Studies 15: 109–118.

    Article  Google Scholar 

  • Woolf, Lord. 2001. Are the courts excessively deferential to the medical profession? Medical Law Review 9: 1–16.

    Article  Google Scholar 

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  1. Department of Law College of Social Science and Humanities, Shandong University of Traditional Chinese Medicine, Jinan, P.R. China

    Xiju Zhao

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  1. Xiju Zhao
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© 2012 Springer-Verlag Berlin Heidelberg

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Zhao, X. (2012). Information Disclosure: A Distinctive Profile. In: The Duty of Medical Practitioners and CAM/TCM Practitioners to Inform Competent Adult Patients about Alternatives. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-31647-0_2

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