Abstract
This chapter concentrates on the New Zealand context, especially New Zealand’s Code of Patients’ Rights, but draws distinctions between jurisdictions, mainly England, Australia and Canada. It is highlighted that, although they share similarly rigorous professional and ethical principles regarding information disclosure, England, Australia, Canada and New Zealand differ from each other on the legal principles regarding a doctor’s duty to inform about alternatives. New Zealand offers the most encompassing range of alternatives that may fall within the duty to disclose. This chapter also compares the New Zealand’s Code approach with the tort law approach. It concludes that, compared to the approaches of either heavily relying on tort law or relying exclusively on professional regulation, the New Zealand’s Code approach has the merit of combining the authority, stability, and proactive character of legislation, with the flexible and embracing nature of professional regulation, at the same time avoiding the inconveniences of medical negligence lawsuits.
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Notes
- 1.
Bolam v Friern Hospital Management Committee [1957] 2 All ER 118, 121–122.
- 2.
Maynard v West Midlands RHA [1985] 1 All ER 635, 639, per Lord Scarman (“in the realm of diagnosis and treatment the negligence is not established by preferring one respectable body of professional opinion to another”).
- 3.
See, Chap. 2.
- 4.
Sidaway v Bethlem Royal Hospital Governors [1985] 1 All ER 643, (1985) AC 871.
- 5.
Sidaway v Bethlem Royal Hospital Governors [1985] 1 All ER 643, 645–654.
- 6.
Bolitho v City and Hackney HA [1998] AC 232 (HL); [1997] 4 All ER 771.
- 7.
Bolitho v City and Hackney HA [1997] 4 All ER 771, 779.
- 8.
- 9.
Pearce v United Bristol Healthcare NHS Trust (1999) 48 BMLR 118; [1999] PIQR 53.
- 10.
Pearce v United Bristol Healthcare NHS Trust [1999] PIQR 53, 59; (1998) 48 BMLR 118, 124 (“if there is a significant risk which would affect the judgment of the reasonable patient, then in the normal course it is the responsibility of a doctor to inform the patient of that significant risk, if the information is needed so that the patient can determine for him or herself as to what course he or she should adopt” (emphasis added)).
- 11.
Kenyon Mason and Douglas Brodie 2005, 301; Sara Fovargue and José Miola 2010b (reading Lord Woolf MR’s words as formulating a “reasonable patient” standard); Shaun D. Pattinson 2006, 111 (it “brings the English legal position very close to Lord Scarman’s ‘prudent patient’ test”). The perceived trend towards the patient-oriented standard of information disclosure is confirmed by Wyatt v Curtis, where Sedley LJ highlighted the importance of having regard to the patient’s perception when judging the “significance” of risks. See, Wyatt v Curtis [2003] EWCA. Civ 1779, [16] (“Lord Woolf’s formulation refines Lord Bridge’s test by recognising that what is substantial and what is grave are questions on which the doctor’s and the patient’s perception may differ, and in relation to which the doctor must therefore have regard to what may be the patient’s perception.”). See also, Alasdair Maclean 2009, 176–177 (arguing that the courts would still rely on the medical experts to determine the significance of a particular risk; commentating that Sedley LJ’s generous interpretation of Lord Woolf’s test was “conspicuously absent” from Lord Woolf’s judgment).
- 12.
Birch v University College Hospitals NHS Trust (2008) 104 BMLR 168, (2008) 105 L.S.G. 19, [2008] All ER (D) 113 (Sep), [2008] EWHC 2237 (QB).
- 13.
Michael A. Jones 2003, 545 (citing Gold v Haringey Health Authority [1988] 1 QB 481).
- 14.
Michael A. Jones 2003, 545, footnote 57 (citing Thake v Maurice [1986] QB 644).
- 15.
Rob Heywood 2009, 31 (commentating that the Birch case, although only a decision of the High Court, is the first English case where the court’s focus was invested on disclosure of alternative treatments and their comparative risks, and the duty to disclose alternative treatments became central to the finding of liability).
- 16.
Birch v University College Hospitals NHS Trust [2008] EWHC 2237 (QB), at [68] (despite the facts that there was no consensus within the profession in 2003 as to the better imaging method for diagnosing aneurysms of the type the claimant-patient might have had, and there has been a trend since 2003 in favour of MRI and other non-invasive techniques as the diagnostic tool of choice).
- 17.
Birch v University College Hospitals NHS Trust [2008] EWHC 2237 (QB), at [69]–[70].
- 18.
Birch v University College Hospitals NHS Trust [2008] EWHC 2237 (QB), at [69] (“In that culture the risks of carrying out a catheter angiogram were not a deterring factor and even in recent years catheter angiography has been regarded as the best first-time method of urgently excluding aneurysms large enough to cause third nerve palsy.”).
- 19.
Birch v University College Hospitals NHS Trust [2008] EWHC 2237 (QB), at [69].
- 20.
Birch v University College Hospitals NHS Trust [2008] EWHC 2237 (QB), at [77].
- 21.
Birch v University College Hospitals NHS Trust [2008] EWHC 2237 (QB), at [74] (emphasis added).
- 22.
But in the context of establishing causation in the informed consent cases. See, Birch v University College Hospitals NHS Trust [2008] EWHC 2237 (QB), at [81] (“The issue is not whether she would have understood the nature of the procedures or what she would have in the face of a recommendation as to catheter angiography. The crucial issue is what she would have decided when given a dispassionate account along the lines indicated, in other words of the two procedures for imaging, and the advantages and disadvantages of each for someone with her background. … It is clear to me that had she been given a fair and balanced account in the way I have held was necessary she would have rejected catheter angiography in favour of MRI. In other words, properly informed she would have declined the procedure leading to her stroke” (emphasis added)).
- 23.
Those “unusual” or “special” circumstances include: (1) the claimant was correctly diagnosed by a neurologist, and the initial plan was sensible; (2) things started to go wrong when, for reasons which were unclear, the specifically recommended MRI for the claimant was blocked; (3) the claimant was then transferred to the defendant-hospital (centre) to exclude two life-threatening possible diagnoses; (4) due to the unavailability of bed in the neurology wards, the claimant fell into the hands of the neurosurgeons; (5) initially both an MRI and catheter angiography were identified as possibilities; (6) however, later on, maybe due to the ascertainment bias among neurosurgeons at the defendant-hospital, the focus was shifted to the possibility of an aneurysm, the priority was given to eliminate the possibility of an aneurysm by catheter angiography, and, thus, the possibility of MRI was discarded; (7) it turned out that, with hindsight, the claimant was subject to an unnecessary procedure which caused a stroke. See, Birch v University College Hospitals NHS Trust [2008] EWHC 2237 (QB), at [78], [82].
- 24.
Birch v University College Hospitals NHS Trust [2008] EWHC 2237 (QB), at [74] (emphasis added).
- 25.
Birch v University College Hospitals NHS Trust [2008] EWHC 2237 (QB), at [74].
- 26.
The un-revealed diagnostic procedure was non-invasive and conservative. It entailed less or no risk. It was capable of ruling out two possible diagnoses, albeit with disputed certainty for one possible diagnosis. On the contrary, the proposed procedure was invasive. It carried an inherent risk of stroke. Although having a high degree of certainty, it can only eliminate one life-threatening condition. It cannot rule out another potentially life-threatening possible diagnosis.
- 27.
See, Rob Heywood 2009, 31 (“[T]he case only succeeded because there were two options available and, even though one was thought to be slightly more effective than the other at ruling out a potentially serious condition, they both broadly could have reached a similar diagnosis. This, of course, will not always be the case. There may be circumstances where alternative medical procedures differ significantly in terms of what they are intended to achieve and the frequency of their success. In this situation it may well be that the alternative medical procedure is simply not a feasible option and thus it would be inappropriate for the law to hold medical practitioners accountable for failure to disclose”(emphasis added)).
- 28.
Birch v University College Hospitals NHS Trust [2008] EWHC 2237 (QB), at [74].
- 29.
Birch v University College Hospitals NHS Trust [2008] EWHC 2237 (QB), at [74] (emphasis added).
- 30.
Birch v University College Hospitals NHS Trust [2008] EWHC 2237 (QB), at [73] (“That decision appears to contain differences as to how a court is to assess whether risks are to be conveyed to the patient, even putting to one side the dissent of Lord Scarman. Lord Diplock’s approach, based firmly on Bolam [1957] 1 WLR 582, asks what a reasonable body of medical opinion would regard as proper to be disclosed (at 893). At least three of their Lordships added the gloss that in some circumstances the proposed treatment may involve a substantial risk of serious consequences which, notwithstanding reasonable medical opinion, must be disclosed to the patient.”).
- 31.
Birch v University College Hospitals NHS Trust [2008] EWHC 2237 (QB), at [79]. Firstly, in the opinion of the Court, in the claimant’s case “no reasonable prudent medical practitioner” would have failed to discuss the respective modalities and risks with the claimant, and “[i]n their absence [the claimant] was denied the opportunity to make an informed choice”. Secondly, in the view of the Court, even if the first observation was wrong, the defendant’s failure “could not be described in law as reasonable, responsible or logical”.
- 32.
Birch v University College Hospitals NHS Trust [2008] EWHC 2237 (QB), at [79].
- 33.
Birch v University College Hospitals NHS Trust [2008] EWHC 2237 (QB), at [79] (“In the light of Mr Kitchen’s important evidence, I am convinced that …”). The Court had favourable impression of that piece of expert evidence because, as the defendant’s own neurosurgeon, the expert conceded mistakes occurred at the defendant-hospital, admitted to neurosurgical bias, and clearly testified that someone should have discussed with the claimant the different imaging methods and their associated risks. See, Birch v University College Hospitals NHS Trust [2008] EWHC 2237 (QB), at [76] (“Given the heavy reliance I have already placed on Mr Kitchen’s evidence in the resolution of this case it is difficult to gloss over so clear a view.”).
- 34.
NICE (UK) Prostate Cancer: Diagnosis and Treatment – Full Guideline (February 2008). The purpose of National Institute for Health and Clinical Excellence (NICE) is to encourage not only the most efficient use of the NHS’s finite resources, but also the best clinical practice and consistency of treatment throughout the NHS. Its recommendations take the forms of Guidance and Guidelines. See, Eisai Ltd. v The National Institute for Health and Clinical Excellence (Nice) [2007] EWHC 1941 (Admin), para [4].
- 35.
NICE (UK) Prostate Cancer: Diagnosis and Treatment – Full Guideline (February 2008), page 7 (“Information and care should be centred on the needs of individual men as they arise from prostate cancer or its treatment, as well as the needs of their partners and carers.”).
- 36.
NICE (UK) Prostate Cancer: Diagnosis and Treatment – Full Guideline (February 2008), page 11.
- 37.
NICE (UK) Prostate Cancer: Diagnosis and Treatment – Full Guideline (February 2008), page 11.
- 38.
NICE (UK) Prostate Cancer: Diagnosis and Treatment – Full Guideline (February 2008), page 10.
- 39.
NICE (UK) Prostate Cancer: Diagnosis and Treatment – Full Guideline (February 2008), page 10.
- 40.
NICE (UK) Prostate Cancer: Diagnosis and Treatment – Full Guideline (February 2008), page 7.
- 41.
NICE (UK) Prostate Cancer: Diagnosis and Treatment – Full Guideline (February 2008), page 7.
- 42.
NICE (UK) Prostate Cancer: Diagnosis and Treatment – Full Guideline (February 2008), page 9.
- 43.
- 44.
José Miola 2009, 106–108 (arguing that “[b]y using Bolam to acknowledge the guidance as a ‘gold standard’ that the reasonable doctor should follow, the law could do far more to protect patient autonomy than by drifting into the rather cosmetic changes that the Australian model would bring”; but admitting that “this would leave the law as a hostage to fortune with regard to the continued excellence of the guidance”).
- 45.
For example, at page xxvi, NICE (UK) Prostate Cancer: Diagnosis and Treatment – Full Guideline (February 2008) has a disclaimer: “The GDG assumes that health care professionals will use clinical judgment, knowledge and expertise when deciding whether it is appropriate to apply these guidelines. The recommendations cited here are a guide and may not be appropriate for use in all situations. The decision to adopt any of the recommendations cited here must be made by the practitioner in light of individual patient circumstances, the wishes of the patient and clinical expertise.”
- 46.
Eisai Ltd, R (on the application of) v National Institute for Health and Clinical Excellence (NICE) [2008] EWCA Civ 438, para [6].
- 47.
Compare Michael A. Jones 2003, 525 (equating the patient-oriented standard of disclosure and the materiality test with the requirement that the doctor should communicate the inherent and potential hazards of the proposed treatment, the alternatives to that treatment, if any, and the likely results if the patient remains untreated).
- 48.
Rogers v Whitaker (1992) 175 C.L.R. 479, 490 (HCA) (“The law should recognize that 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” (emphasis added)).
- 49.
Rosenberg v Percival [2001] 205 C.L.R. 434, 476–481 (Kirby J.), 501 (Callinan J.).
- 50.
Commonwealth of Australia 2002, page 48 (confirming a medical practitioner’s two kinds of duty to inform: “the proactive duty to inform” and “the reactive duty to inform”); Civil Liability Act 2003 (Qld), s 21(1); Civil Liability Act 2002 (Tas), s 21.
- 51.
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.
- 52.
Civil 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).
- 53.
Civil Liability Act 2003 (Qld), s 21(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 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.”); Civil Liability Act 2002 (Tas), s 21.
- 54.
See, Michael Weir 2003, 297 (noting that there is a surprising paucity of case law in Australia on the specific issue of the duty to disclose treatment options).
- 55.
Michael Weir 2003, 297 (reading the Canadian case of Haughian v Paine (1987), 37 D.L.R. (4th) 624; [1987] 4 WWR 97).
- 56.
Elizabeth Brophy 2003, 275 (citing The Laws of Australia (Lawbook Co., subscription service) Medical Practitioners 27.2 “Negligence: Standard of Care” at [31]).
- 57.
Rosenberg v Percival [2001] 205 CLR 434, 465, per Kirby J. (observing that health providers have a duty “to inform patients contemplating invasive procedures (such as surgery) of the material risks involved in the treatment proposed, and any available alternatives. Any ‘choice’ by the patient, in respect of such procedures, without the provision of such information, is meaningless.”).
- 58.
Richards v Rahilly [2005] NSWSC 352.
- 59.
Richards v Rahilly [2005] NSWSC 352, paras. [235]–[236].
- 60.
Commonwealth of Australia 2002, page 113, paras. 7.38 and 7.40 (continuing to adopt a subjective test of causation, but recommending that “in determining causation, any statement by the plaintiff about what they would have done if the negligence had not occurred should be inadmissible”).
- 61.
See, Civil Liability Act 2003 (Qld) s 11(3) (“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.”) (emphasis added). See also, Civil Liability Act 2002 (NSW) s 5D (3); Civil Liability Act 2002 (Tas) s 13(3); Civil Liability Act 2002 (WA) s 5C(3).
- 62.
A new surgical procedure is defined as one that has not previously been used in that particular hospital or health service, and represents a significant departure from previous practice. See, Royal Australasian College of Surgeons 2008, 1.1.
- 63.
The National Health and Medical Research Council (NHMRC) is Australia’s peak body for supporting health and medical research; for developing health advice for the Australian community, health professionals and governments; and for providing advice on ethical behaviour in health care and in the conduct of health and medical research. The current legislative basis of the Council is the National Health and Medical Research Council Act 1992 (NHMRC Act). The NHMRC is responsible to the Commonwealth Minister for Health and Ageing. One of the NHMRC’s strategic objectives is to maintain high ethical standards. See, <http://www.nhmrc.gov.au/about/org/role.htm>.
- 64.
When discussing the proposed intervention with the patient, it envisages that the following information should be conveyed in plain language: (1) a description of the intervention; (2) what will happen to the patient; (3) whether the proposed intervention is critical, essential, elective or discretionary; (4) whether the proposed intervention represents current accepted medical practice; (5) whether the proposed intervention is conventional, experimental or innovative; (6) whether the proposed intervention is part of a clinical trial or other research project; (7) the potential consequences of any proposed intervention: the expected benefits; common side-effects, common complications, contraindications and possible harms, including their likelihood and degree; uncommon side-effects to which the particular patient may be exposed, or which are of concern to that patient; any outcomes that may require further intervention; and any significant long-term adverse outcomes (physical, emotional, mental, social, sexual, financial or other); (8) the degree of uncertainty about the benefit(s) of the proposed intervention; (9) how quickly a decision about the proposed intervention needs to be made; (10) who will undertake the proposed intervention, including their status and the extent of their experience, and that of any supervising doctor, where this information is known; (11) how long the proposed intervention will take; (12) how long until the results of any intervention will be available; (13) how long will be needed for recuperation and/or rehabilitation; (14) what the estimated costs are (where known), including out-of-pocket costs; and what, if any, conflicts of interest the doctor may have, including financial ones. In addition, the patient should be advised of alternative options including: what those options are; their availability and potential consequences; likely short- and long-term consequences that may arise if they choose not to proceed with the proposed intervention or with any intervention at all. It is noted that complex interventions usually require the provision of detailed information, as do treatments where the patient has no physical illness, for example cosmetic surgery. See, The National Health and Medical Research Council (NHMRC) (2004a), p. 10, 6.6.
- 65.
Hopp v Lepp (1980), 112 D.L.R. (3d) 67 (S.C.C.); [1980] 2 S.C.R. 192.
- 66.
Reibl v Hughes [1980] 2 S.C.R. 880, (1980) 114 D.L.R. (3d) 1 (S.C.C.).
- 67.
Hopp v Lepp (1980), 112 D.L.R. (3d) 67, 80 (S.C.C.); Reibl v Hughes (1980) 114 D.L.R. (3d) 1, 12–13 (S.C.C.).
- 68.
Reibl v Hughes (1980) 114 D.L.R. (3d) 1, 12 (S.C.C.) (“The patient may have expressed certain concerns to the doctor and the latter is obligated to meet them in a reasonable way. What the doctor knows or should know that the particular patient deems relevant to a decision whether to undergo prescribed treatment goes equally to his duty of disclosure as do the material risks recognized as a matter of required medical knowledge.”); Videto v Kennedy (1981) 125 D.L.R. (3d) 127, 133–134 (Ont. C.A.).
- 69.
Jocelyn Downie et al. 2002, 131; Videto v Kennedy (1981) 125 D.L.R. (3d) 127, 133–134 (Ont. C.A.).
- 70.
Videto v Kennedy (1981) 125 D.L.R. (3d) 127, 133–134 (Ont. C.A.).
- 71.
Videto v Kennedy (1981) 125 D.L.R. (3d) 127, 133–134 (Ont. C.A.).
- 72.
Zimmer v Ringrose (1981), 124 D.L.R. (3d) 215, 222 (Alta. C.A.) (emphasis added).
- 73.
Haughian v Paine (1987), 37 D.L.R. (4th) 624; [1987] 4 WWR 97.
- 74.
Haughian v Paine (1987), 37 D.L.R. (4th) 624, 635.
- 75.
Haughian v Paine (1987), 37 D.L.R. (4th) 624, 635.
- 76.
Haughian v Paine (1987), 37 D.L.R. (4th) 624, 635.
- 77.
Haughian v Paine (1987), 37 D.L.R. (4th) 624, 634.
- 78.
Haughian v Paine (1987), 37 D.L.R. (4th) 624, 643.
- 79.
Haughian v Paine (1987), 37 D.L.R. (4th) 624, 644.
- 80.
Haughian v Paine (1987), 37 D.L.R. (4th) 624, 644.
- 81.
Haughian v Paine (1987), 37 D.L.R. (4th) 624, 643.
- 82.
Haughian v Paine (1987), 37 D.L.R. (4th) 624, 636–638 (citing Hopp v Lepp (1980), 112 D.L.R. (3d) 67 (S.C.C.); Reibl v Hughes (1980) 114 D.L.R. (3d) 1 (S.C.C.); Videto v Kennedy (1981) 125 D.L.R. (3d) 127 (Ont. C.A.)).
- 83.
Haughian v Paine (1987), 37 D.L.R. (4th) 624, 638–639.
- 84.
Haughian v Paine (1987), 37 D.L.R. (4th) 624, 639.
- 85.
Haughian v Paine (1987), 37 D.L.R. (4th) 624, 643.
- 86.
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 C.L.R. 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).
- 87.
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.). The Canadian landmark informed consent case – Reibl v Hughes – presented a context where the patient was offered the choice of having the recommended operation or not having it, and disclosure of material information (risk of stroke) could have made the patient to postpone surgery until his disability and pension entitlements were complete. In the eyes of the Court, a reasonable person in the plaintiff’s position would have declined surgery at the particular time if undisclosed information had been revealed.
- 88.
Haughian v Paine (1987), 37 D.L.R. (4th) 624, 644–647.
- 89.
Seney v Crooks (1998), 166 D.L.R. (4th) 337 (Alta. C.A.).
- 90.
Seney v Crooks (1998), 166 D.L.R. (4th) 337, 353 (Alta. C.A.).
- 91.
Seney v Crooks (1998), 166 D.L.R. (4th) 337, 356, at [70] (Alta. C.A.).
- 92.
Seney v Crooks (1998), 166 D.L.R. (4th) 337, 351 (Alta. C.A.).
- 93.
Seney v Crooks (1998), 166 D.L.R. (4th) 337, 351, at [53] (Alta. C.A.).
- 94.
Seney v Crooks (1998), 166 D.L.R. (4th) 337, 347–348 (Alta. C.A.).
- 95.
Seney v Crooks (1998), 166 D.L.R. (4th) 337, 356, at [70] (Alta. C.A.).
- 96.
Seney v Crooks (1998), 166 D.L.R. (4th) 337, 353, at [59] (Alta. C.A.).
- 97.
Seney v Crooks (1998), 166 D.L.R. (4th) 337, 352, at [55] (Alta. C.A.) (citing Picard J.A. and Robertson, Legal liability of doctors and hospitals in Canada, 3rd ed. (Scarborough: Carswell, 1996), pp. 129–130).
- 98.
Bucknam v Kostuik (1984) 3 D.L.R. (4th) 99 (H.C.J.); Martins v Barsoum, unreported (15 March 1995) (Ont. H.C.J.); Ferron v Yadav, [1990] OJ No. 473 (QL) (H.C.J.).
- 99.
Seney v Crooks (1998), 166 D.L.R. (4th) 337, 361, at [95] (Alta. C.A.).
- 100.
Seney v Crooks (1998), 166 D.L.R. (4th) 337, 362–363, at [99] and [101] (Alta. C.A.).
- 101.
Seney v Crooks (1998), 166 D.L.R. (4th) 337, 364, at [108] (Alta. C.A.). Compare, Seney v Crooks (1998), 166 D.L.R. (4th) 337, 344, at [26] (Alta. C.A.) (Hetherington J.A. dissenting) (holding that the surgeon’s failure to disclose an alternative treatment did not cause the plaintiff’s loss: “The question for the trial judge was not whether there was a possibility that the damage to [the patient] could have been avoided. Nor was it whether the risk of damage could have been reduced. The question for the trial judge was whether he was satisfied on a balance of probabilities that the alternative treatment, [], would have prevented or reduced the damage.” (emphasis in the original)).
- 102.
Seney v Crooks (1998), 166 D.L.R. (4th) 337, 364, at [108] (Alta. C.A.).
- 103.
Sicard v Sendziak, 2008 ABQB 690, at [116] (Court of Queen’s Bench of Alberta).
- 104.
Van Dyke v Grey Bruce Regional Health Centre (2005), 255 D.L.R. (4th) 397.
- 105.
Van Dyke v Grey Bruce Regional Health Centre (2005), 255 D.L.R. (4th) 397, 414, at [63]–[64].
- 106.
Van Dyke v Grey Bruce Regional Health Centre (2005), 255 D.L.R. (4th) 397, 414–415, at [65]–[66] (one line of authorities is: Bucknam v Kostuik (1984) 3 D.L.R. (4th) 99 (H.C.J.); Ferron v Yadav, [1990] OJ No. 473 (QL) (H.C.J.); another line is Seney v Crooks (1998), 166 D.L.R. (4th) 337 (Alta. C.A.)).
- 107.
Van Dyke v Grey Bruce Regional Health Center (2005), 255 D.L.R. (4th) 397, at [67].
- 108.
Health Care Consent Act, 1996 S.O., c. 2, Sched. A, s 11(2).
- 109.
Health Care Consent Act, 1996 S.O., c. 2, Sched. A, s 11(3) (emphasis added).
- 110.
The College of Physicians and Surgeons of Ontario 2005, 2. Consent must be informed. (“A physician must provide a patient with information about the nature of the treatment, its expected benefits, its material risks and side effects, alternative courses of action and the likely consequences of not having the treatment.” “If the patient requests additional information, he or she must receive a response.”).
- 111.
The Canadian Medical Protective Association 2006, page 7 (“the patient must have been given an adequate explanation about the nature of the proposed investigation or treatment and its anticipated outcome as well as the significant risks involved and alternatives available.”).
- 112.
Civil Liability Act 2003 (Qld), s 21(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 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” (emphasis added)); Civil Liability Act 2002 (Tas), s 21.
- 113.
Haughian v Paine (1987), 37 D.L.R. (4th) 624, 639 (citing a commentary from Reibl v Hughes which quoted Canterbury v Spence and noted that expert testimony is necessary to establish not only risks inherent in a given procedure, but also “the consequences of leaving the ailment untreated, and alternative means of treatment and their risks”); Seney v Crooks (1998), 166 D.L.R. (4th) 337, 352, at [55] (Alta. C.A.) (citing Picard J.A. and Robertson Legal liability of doctors and hospitals in Canada, 3rd ed. (Scarborough: Carswell, 1996), pp. 129–130, where scholars argues that although the language in Canadian landmark informed consent cases was couched in terms of disclosure of risks, the duty of disclosure is not confined to risks but extends to other material information which a reasonable patient would want to have, particularly available alternatives to the proposed treatment and the material risks associated with those alternatives).
- 114.
In Rosenberg v Percival, an argument that a duty to inform covers “any available alternatives” was hinted, but not pursued. See, Rosenberg v Percival [2001] 205 CLR 434, 465, per Kirby J. (noting that health providers have a duty “to inform patients contemplating invasive procedures (such as surgery) of the material risks involved in the treatment proposed, and any available alternatives. Any ‘choice’ by the patient, in respect of such procedures, without the provision of such information, is meaningless.”).
- 115.
Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulations 1996, Schedule.
- 116.
The Report of the Committee of Inquiry into Allegations Concerning the Treatment of Cervical Cancer at National Women’s Hospital and into Other Related Matters, Auckland, Committee of Inquiry, 1988. The Cartwright Inquiry was triggered by an article published in the Metro magazine, alleging unethical experimentation at National Women’s Hospital. The Cartwright Report led to major reforms to patient rights in New Zealand. See, DB Collins and CA Brown 2009, 601.
- 117.
1994 No. 88, Amendment 2003 No. 49.
- 118.
See, cl 1 (2) (“Every provider is subject to the duties in this Code.”) and cl 2 (“The rights of consumers and the duties of providers under this Code are as follows: … ”) of the Code.
- 119.
Health and Disability Commissioner Act 1994 (NZ), s 34(1)(a).
- 120.
Health and Disability Commissioner Act 1994 (NZ), s 43(2)(d).
- 121.
P.D.G. Skegg and Ron Paterson (General Editors) 2006, 608–609. In deciding whether to refer to the DP, the Commissioner must have regard to three considerations: (1) the wishes of the complainant (if any) and the aggrieved person (if not the complainant) in relation to the matter; (2) any comments made by the provider on the proposed referral; and (3) the public interest. The HPDT jurisdiction is only available to registered health practitioners, and is not available for non-registered (such as complementary and alternative medicine) providers. The HRRT jurisdiction is available for both registered health practitioners and CAM providers. It has power to award complementary and punitive damages. According to the Health and Disability Commissioner Act, an action before the HRRT may result in a declaration (s 54(1)(a)), a restraining order (s 54(1)(b)), an order to perform some acts(s 54(1)(e)), or/and the award of damages(s 54(1)(c)). The damages sought by the Director or the aggrieved person include compensatory damages (s 57(1)(c)) and exemplary/punitive damages(s 57(1)(d)), but do not cover “personal injury” damages (s 52(2)).
- 122.
Joanna Manning 2009, 315. As far as the definition of “provider” is concerned, section 3 of the Health and Disability Commissioner Act lists categories of person who will fall within the meaning of “health care provider”. This section also has a very open paragraph (k). By virtue of this paragraph, the term “health care provider” will also cover “any other person who provides, or holds himself or herself or itself out as providing, health services to the public or to any section of the public, whether or not any charge is made for those services”.
- 123.
According to Section 5 of the Accident Rehabilitation and Compensation Insurance Act 1992, “medical misadventure” means personal injury resulting from medical error or medical mishap. “Medical error” means the failure of a registered health professional to observe a standard of care and skill reasonably to be expected in the circumstances. It is not medical error solely because desired results are not achieved or because subsequent events show that different decisions might have produced better results. “Medical mishap” means an adverse consequence of treatment by a registered health professional, properly given if: (a) The likelihood of the adverse consequence of the treatment occurring is rare; and (b) The adverse consequence of the treatment is severe. Under the notion of “medical misadventure”, there was still a need to establish that the health professional had acted negligently. Fault still needed to be established, blame still needed to be attributed. That formed “an oddity in a scheme essentially based on the principle of no-fault cover” (Petra Butler “A Brief Introduction to Medical Misadventure” (2004) 35 VUWLR 811, 816). See also, P.D.G. Skegg and Ron Paterson (General Editors) 2006, 687–694.
- 124.
By section 5(1)(a) of the Accident Compensation Amendment Act 2010 (2010 No. 1), the name of the principal Act changed. The principal Act is now called the Accident Compensation Act 2001. “Accident Compensation” is substituted for “Injury Prevention, Rehabilitation, and Compensation”.
- 125.
P.D.G. Skegg and Ron Paterson (General Editors) 2006, 696. See also, Ken Oliphant 2007, 387 (noting that the 2005 reform – particularly the rejection of the fault-based test of medical error – evidences a paradigm shift in attitudes to injury prevention, the role of ACC and the state’s responsibility for personal injury).
- 126.
Reforms in 2005 removed the final fault element from the compensation criteria for medical injuries, making it a true no-fault system. However, there are still some situations in which fault continues to play some part in the new treatment injury provisions. See, Ken Oliphant 2007, 381.
- 127.
Injury Prevention, Rehabilitation, and Compensation Act 2001, s 32(1)(b). See, Edwards v Accident Compensation Corporation [2009] NZACC 116, [22] (holding that the appellant falls at the first hurdle of establishing that she has suffered personal injury “caused by treatment” (s 32(1)(b)), and there is no link between the appellant’s development of rheumatoid arthritis, and her treatment with co-trimoxazole despite an apparent temporal connection).
- 128.
Injury Prevention, Rehabilitation, and Compensation Act 2001, s 33(1)(a) (b) (c) (d) (e). Section 36(2)(a) of the Accident Insurance Act 1998 provided that “medical error” includes a negligent failure to obtain informed consent to treatment. In the context of “medical misadventure”, “a medical mishap” may flow from “deficient medical advice” – whether through failure to inform or misrepresentation, innocent or fraudulent. See, Green v Matheson [1989] 3 NZLR 564, 573 (CA). Misrepresentation about the risks inherent in proposed treatment would be treated as “medical misadventure”. See, Ken Oliphant 1996. A negligent failure to obtain an informed consent where the relevant risk eventuates and results in personal injury is covered by the compensation scheme, and patients suffering physical injury cannot bring a civil claim in negligence for damages for breach of the duty to warn. See, Joanna Manning 2004, 184.
- 129.
J v Accident Compensation Corporation [2006] NZACC 33, para. [99] (“The allegation of a lack of informed consent includes an assertion that the appellant would not have proceeded to have the termination had she been properly informed of the risks of the operation.”).
- 130.
Doyle v Accident Compensation Corporation [1997] 3 NZLR 160, 166 (HC), per Fisher J. See also, XYZ v Accident Compensation Corporation [2002] NZACC 53, para. [20] (“the injury suffered must be attributable to the medical error”). Although these observations were given in the old context of “medical misadventure” founded upon deficient medical advice, they are also applicable to the new context of “treatment injury” caused by failure to give appropriate information.
- 131.
See, Sect. 4.2.4.
- 132.
Accident Compensation Corp v Ambros [2008] 1 NZLR 340 (CA).
- 133.
Accident Compensation Corp v Ambros [2008] 1 NZLR 340, 355 (CA), at [52] (waiting until a case arises in the New Zealand context).
- 134.
Accident Compensation Corp v Ambros [2008] 1 NZLR 340, 354 (CA), at [50] (emphasis added).
- 135.
Accident Compensation Corp v Ambros [2008] 1 NZLR 340, 355 (CA), at [51].
- 136.
Accident Compensation Corp v Ambros [2008] 1 NZLR 340, 355 (CA), at [51].
- 137.
P.D.G. Skegg and Ron Paterson (General Editors) 2006, 40–41 (“Failure to supply the requisite information is a breach of Right 6, irrespective of whether the consumer would have gone ahead with the procedure if the information had been disclosed.”).
- 138.
R. Paterson “Commissioner’s Report” in Health and Disability Commissioner Annual Report 2007, p. 1.
- 139.
Ron Paterson 2002, 74–75 (“the focus of the complaints system is resolution of complaints at the lowest appropriate level, acknowledgement of a patient’s concerns, and, where necessary, review and rehabilitation of a substandard practitioner or system”).
- 140.
For example, in the above-mentioned Opinion 02HDC18414 (Health and Disability Commissioner, 6/4/04), what the Commissioner recommended was that the provider (1) apologise to his patient; and (2) review his explanation of treatment options available to patients, in light of the Opinion. Also see, P.D.G. Skegg and Ron Paterson (General Editors) 2006, 56 (noting that there is “no general right to damages” for breach of the Code).
- 141.
Joanna Manning 2008, 129 (also offering an explanation based on resources).
- 142.
Joanna Manning 2008, 130–131 (revealing that commissioners have referred only tens of complaints to the Director of Proceedings out of more than 1,000 complaints concluded annually); DB Collins and CA Brown “The impact of the Cartwright Report upon the regulation, discipline and accountability of medical practitioners in New Zealand” (2009) 16 JLM 595, 609 (noting that the lower incidence of disciplinary hearings may be attributed to the Commissioner’s discretion to make adverse findings against practitioners).
- 143.
Although there has been a dramatic increase in the number of complaints since the Commissioner’s Office was founded, the number of disciplinary charges before professional bodies and disciplinary bodies has declined. In 2000–2001, of 111 cases where the commissioner found that a doctor had breached the code, only twelve were referred for professional discipline. See, Ron Paterson 2002, 77–78.
- 144.
Smith v Auckland Hospital Board [1964] NZLR 241; revd [1965] NZLR 191.
- 145.
Smith v Auckland Hospital Board [1964] NZLR 241; revd [1965] NZLR 191, 213, per McGregor J.
- 146.
Smith v Auckland Hospital Board [1965] NZLR 191, 216, per T.A. Gresson J.
- 147.
Smith v Auckland Hospital Board [1965] NZLR 191, 219, per T.A. Gresson J.
- 148.
Smith v Auckland Hospital Board [1964] NZLR 241; revd [1965] NZLR 191, 197 (emphasis added). Hutchison J. also expressly noted that his view “relates only to the present case, in which, as must be accepted, the appellant made the inquiry” (at 212).
- 149.
Smith v Auckland Hospital Board [1964] NZLR 241; revd [1965] NZLR 191, 206, per Turner J.
- 150.
Smith v Auckland Hospital Board [1964] NZLR 241; revd [1965] NZLR 191, 213, per McGregor J.
- 151.
Smith v Auckland Hospital Board [1964] NZLR 241; revd [1965] NZLR 191, 206, per Turner J.
- 152.
Smith v Auckland Hospital Board [1964] NZLR 241; revd [1965] NZLR 191, 205–206, per Turner J. (emphasis added).
- 153.
Smith v Auckland Hospital Board [1964] NZLR 241; revd [1965] NZLR 191, 205–206, per Turner J. (“What is proper in specific circumstances must, … be measured by what other competent and experienced medical men would conceive as their duty in like circumstances”).
- 154.
Smith v Auckland Hospital Board [1964] NZLR 241, 247.
- 155.
Smith v Auckland Hospital Board [1965] NZLR 191, 226–227, per T.A. Gresson J.
- 156.
Bolam 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.”).
- 157.
Doyle 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).
- 158.
Doyle v Accident Compensation Corporation [1997] 3 NZLR 160, 165 (HC), per Fisher J. (citing H v ACC [1990] NZAR 289 and Hazel v ACC [1991] NZAR 362).
- 159.
Doyle v Accident Compensation Corporation [1997] 3 NZLR 160, 165 (HC), per Fisher J. (citing Rogers v Whitaker (1992) 109 ALR 625 (HCA)).
- 160.
Doyle v Accident Compensation Corporation [1997] 3 NZLR 160, 165 (HC), per Fisher J. (citing Rogers v Whitaker (1992) 109 ALR 625 (HCA)).
- 161.
B v Medical Council of NZ 8/7/96, Elias J, HC Auckland HC 11/96, noted at [2005] 3 NZLR 810.
- 162.
B v Medical Council (Note) [2005] 3 NZLR 810, 812 (emphasis added).
- 163.
Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulation 1996, Schedule, Right 4(1) and (2).
- 164.
José Miola 2009, 94 (“As can be seen, Right 6 seems at first glance to consist of the first, objective, part of the Rogers test, but with additional, wide-ranging details being classed as material, such as information about the doctor’s qualifications and alternative treatments” (emphasis added)).
- 165.
Doyle v Accident Compensation Corporation [1997] 3 NZLR 160, 165 (HC), per Fisher J.
- 166.
Rogers v Whitaker (1992) 175 C.L.R. 479, 490 (HCA) (“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” (emphasis added)); Pearce v United Bristol Healthcare NHS Trust [1999] PIQR 53, 59; (1998) 48 BMLR 118, 124 (“if there is a significant risk which would affect the judgment of the reasonable patient, then in the normal course it is the responsibility of a doctor to inform the patient of that significant risk, if the information is needed so that the patient can determine for him or herself as to what course he or she should adopt” (emphasis added)); 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” (emphasis added)); 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” (emphasis added)).
- 167.
Fitzpatrick v White [2008] 3 IR 551, 564 at [35] per Kearns J.
- 168.
Rogers v Whitaker (1992) 175 C.L.R. 479, 494 (HCA), per Gaudron J. (the doctor needs to disclose “information that is relevant to a decision or course of action”).
- 169.
F. v R. (1983) 33 S.A.S.R 189, 192, per King C.J. (the duty to disclose extends “only to matters which might influence the decisions of a reasonable person in the situation of the patient”). See also, Williams v Golden, 699 So.2d 102, 107 (La.App. 4 Cir. 1997) (“A physician is required to advise a patient of any material consequences which would influence the decision of a reasonable person in the patient’s condition.” “The second prong … is … to decide whether the probability of that type harm is a risk which a reasonable patient would consider in deciding on treatment” (emphasis added)).
- 170.
F. v R. (1983) 33 S.A.S.R 189, 192, per King C.J. (a doctor do not need to disclose risks “which are not sufficiently substantial to be a factor in the decision-making of a reasonable person”).
- 171.
Rosenberg v Percival [2001] 205 C.L.R. 434, 459, per Gummow J. (emphasis added).
- 172.
Rogers v Whitaker (1992) 175 C.L.R. 479, 494 (HCA), per Gaudron J.
- 173.
F. v R. (1983) 33 S.A.S.R 189, 192, per King C.J.
- 174.
Rosenberg v Percival [2001] 205 C.L.R. 434, 459, per Gummow J.
- 175.
Wilkinson v Vessey, 295 A.2d 676, 689 (R.I. 1972).
- 176.
Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulation 1996, Schedule, Right 6(1) (emphasis added).
- 177.
Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulation 1996, Schedule, Right 6(2) (emphasis added). “Choice” means a decision (a) to receive service; (b) to refuse services; and (c) to withdraw consent to services.
- 178.
However, it seems that these distinctions are not important in practice, as both provisions are variously cited in Commissioner Opinions. See, P.D.G. Skegg and Ron Paterson (General Editors) 2006, 40.
- 179.
See, Joanna Manning 2004, 201 (favouring the Australian formulation about “likely to attach significance to”, which is “likely to seriously consider and weigh up the risk before reaching a decision”; noting that “[t]he information does not have to be determinative of the patient’s choice, so long as it would have been considered as reasonably relevant to that choice; a piece of information that a reasonable patient would have wanted to consider and weigh in the balance” (emphasis added)).
- 180.
See, the “list” of the information in Right 6(1) of the Code (“(a) An explanation of [consumer’s] condition; and (b) An explanation of the options available, …; and (c) Advice of the estimated time within which the services will be provided; and (d) Notification of any proposed participation in teaching or research, including whether the research requires and has received ethical approval; and (e) Any other information required by legal, professional, ethical, and other relevant standards; and (f) The results of tests; (g) The results of procedures.”).
- 181.
Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulation 1996, Schedule, Right 6(3).
- 182.
Joanna Manning 2004, 204 (also noting that whether it is an accurate answer will be judged by the Commissioner in the light of responsible medical opinion).
- 183.
Joanna Manning 2004, 193–194 (quoting with approval Professor Peter Skegg’s opinion, arguing that “[t]he closer the focus on the individual circumstances of the particular patient, the closer in practice the test in Right 6 approaches a subjective one”); José Miola 2009, 94 (“[D]espite not containing a subjective element, Right 6 lacks little in comprehensiveness in comparison to Rogers.”).
- 184.
Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulation 1996, Schedule, Right 6(1) and (2).
- 185.
I agree with Professor Peter Skegg that the “list” is best viewed as a checklist of the kinds of information that should be sometimes provided, and the word “including” is better read as synonymous with “such as”. In many circumstances, a reasonable consumer, in that consumer’s circumstances, would not expect to receive all of the information listed in paragraphs (a)–(g) of Right 6(1). See, P D G Skegg and Ron Paterson (General Editors) 2006, 212.
- 186.
Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulation 1996, Schedule, Right 6(1)(a)–(g).
- 187.
Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulation 1996, Schedule, Right 6(3)(a)–(d).
- 188.
See, Opinion 02HDC18414 (Health and Disability Commissioner, 6/4/04) (failure to provide contextualised information), page 14.
- 189.
Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulation 1996, Schedule, Right6(1)(b).
- 190.
Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulation 1996, Schedule, Right 6(1)(e).
- 191.
There is a need to realise that the professional and ethical standards “will not always have been drafted with a view to their being used in a legal context”. See, P.D.G. Skegg and Ron Paterson (General Editors) 2006, 213 (opining that Right 6(1)(e) be read with the opening words of Right 6(1) and clause 3 of the Code).
- 192.
Medical Council of New Zealand 2002 (reiterating the legal (the Code’s) requirements, including Right 6).
- 193.
Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulation 1996, Schedule, Right 6(1)(b). Compare, Medical Council of New Zealand advises doctors to make themselves aware of all the “reasonable” alternatives. See, Medical Council of New Zealand Information, Choice of Treatment and Consent (2011), para. 8.
- 194.
For example, where a procedure is elective and cosmetic, a consumer needs to be told of all the treatment options, the risks, benefits, and likely outcome of each. In situations where the provider wishes to offer an innovative treatment s/he believes is effective, the provider should attempt to present the patient with a clear and balanced summary of the information available. See, Joanna Manning 2004, 197–198.
- 195.
Opinion 09HDC00891 (Health and Disability Commissioner, 31/3/2010) (prioritization and management of a patient), pp. 17–18.
- 196.
Opinion 04HDC13909 (Health and Disability Commissioner, 4/4/06) (failure to provide accurate information about the expected waiting time).
- 197.
Opinion 01/05619 (Health and Disability Commissioner, 31/7/2002) (failure to provide balanced information about alternatives).
- 198.
Opinion 03HDC19128 (Health and Disability Commissioner, 14/9/04) (failure to reveal that the provider’s practice was subject to restrictions).
- 199.
Opinion 03HDC19128 (Health and Disability Commissioner, 14/9/04) (failure to reveal that the provider’s practice was subject to restrictions).
- 200.
Opinion 02HDC18414 (Health and Disability Commissioner, 6/4/04) (failure to provide contextualised information) (emphasis added).
- 201.
Opinion 03HDC19128 (Health and Disability Commissioner, 14/9/04) (failure to reveal that the provider’s practice was subject to restrictions) (emphasis added).
- 202.
Opinion 03HDC19128 (Health and Disability Commissioner, 14/9/04) (failure to reveal that the provider’s practice was subject to restrictions). See also, HDC opinions 00HDC10159 and 00HDC08628.
- 203.
Opinion 00HDC08628 (Health and Disability Commissioner, 30/7/02) (A provider who did not have an access agreement at the local maternity facility).
- 204.
Opinion 08HDC20258 (Health and Disability Commissioner, 11/11/09) (a relatively new procedure).
- 205.
Opinion 03HDC19128 (Health and Disability Commissioner, 14/9/04) (failure to reveal that the provider’s practice was subject to restrictions).
- 206.
Opinion 03HDC19128 (Health and Disability Commissioner, 14/9/04) (failure to reveal that the provider’s practice was subject to restrictions).
- 207.
Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulation 1996, Schedule, Right 6(1)(b). For example, in the context of cosmetic procedure where the procedure being carried out is elective and has no medical benefit, and where the consumer often has heightened expectations about what can be achieved, it is particularly important that the provider give his patient enough information, both positive and negative, at the preoperative consultation to make the patient to have a realistic expectation about the final outcome. See, Opinion 07HDC05410 (Health and Disability Commissioner, 28/04/2008) (general surgeon, cosmetic surgery), page 16 (finding that the provider did not give the patient adequate information about the size and extent of scarring involved in a cosmetic procedure, noting that there is an inherent conflict of interests because the surgeon stands to benefit financially if the consumer agrees to proceed it).
- 208.
Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulation 1996, Schedule, Right 6(3)(b).
- 209.
New Zealand Medical Association 2008, page 7, [18].
- 210.
Barnett Bond “ Chapter 11: Informed consent” in Cole’s medical practice in New Zealand 2008, page 88.
- 211.
Barnett Bond “Chapter 11: Informed consent” in Cole’s medical practice in New Zealand 2008, page 89.
- 212.
Opinion 01/05619 (Health and Disability Commissioner, 31/7/2002) (failure to provide balanced information about alternatives).
- 213.
Opinion 04HDC00031 (Health and Disability Commissioner, 24/2/2005), page 9 (Orthopaedic surgeon’s failure to inform his patient of the option he did not favor).
- 214.
Opinion 04HDC00031 (Health and Disability Commissioner, 24/2/2005), page 9 (Orthopaedic surgeon’s failure to inform his patient of the option he did not favor).
- 215.
Opinion 03HDC19128 (Health and Disability Commissioner, 14/9/2004) (failure to reveal that the provider’s practice was subject to restrictions).
- 216.
Opinion 03HDC19128 (Health and Disability Commissioner, 14/9/2004) (failure to reveal that the provider’s practice was subject to restrictions).
- 217.
Opinion 04HDC00031 (Health and Disability Commissioner, 24/2/2005), page 9 (Orthopaedic surgeon’s failure to inform his patient of the option he did not favor).
- 218.
Tim Dare et al. 2010, 263–264 (describing the case as “striking”).
- 219.
The National Advisory Committee on Health and Disability (New Zealand) 2006, page 12–13 (some clinicians read this case as patients giving them pressure to “consider” interventions for which they didn’t feel there was strong evidence; “Some clinicians expressed concern about the potential conflict between making information on new interventions available to patients and providing quality care in a setting of constrained resources” (emphasis added)).
- 220.
Opinion 02HDC18414 (Health and Disability Commissioner, 6/4/04) (failure to provide contextualised information), page 3.
- 221.
Opinion 02HDC18414 (Health and Disability Commissioner, 6/4/04) (failure to provide contextualised information), page 4.
- 222.
Opinion 02HDC18414 (Health and Disability Commissioner, 6/4/04) (failure to provide contextualised information), page 12.
- 223.
Opinion 02HDC18414 (Health and Disability Commissioner, 6/4/04) (failure to provide contextualised information), page 6.
- 224.
The Australian surgeon informed the patient that surgery was certainly not curative and there is no good scientific evidence to suggest that further resection of the tumour would necessarily increase his life span. See, Opinion 02HDC18414 (Health and Disability Commissioner, 6/4/04) (failure to provide contextualised information), page 7.
- 225.
Opinion 02HDC18414 (Health and Disability Commissioner, 6/4/04) (failure to provide contextualised information), page 9.
- 226.
Opinion 02HDC18414 (Health and Disability Commissioner, 6/4/04) (failure to provide contextualised information), page 8.
- 227.
Opinion 02HDC18414 (Health and Disability Commissioner, 6/4/04) (failure to provide contextualised information), page 15.
- 228.
Opinion 02HDC18414 (Health and Disability Commissioner, 6/4/04) (failure to provide contextualised information), page 9–10. In their view, the provider made a choice for them, and it was up to the patient to make the decision of whether or not to undergo surgery.
- 229.
Opinion 02HDC18414 (Health and Disability Commissioner, 6/4/04) (failure to provide contextualised information), page 15.
- 230.
Opinion 02HDC18414 (Health and Disability Commissioner, 6/4/04) (failure to provide contextualised information), page 12.
- 231.
Opinion 02HDC18414 (Health and Disability Commissioner, 6/4/04) (failure to provide contextualised information), page 14.
- 232.
Opinion 02HDC18414 (Health and Disability Commissioner, 6/4/04) (failure to provide contextualised information), page 13.
- 233.
Opinion 02HDC18414 (Health and Disability Commissioner, 6/4/04) (failure to provide contextualised information), page 12.
- 234.
Opinion 02HDC18414 (Health and Disability Commissioner, 6/4/04) (failure to provide contextualised information), pages 13–14 (noting that the patient, a general practitioner, saw the neurosurgeon in his specialist capacity; raising the argument that, given the particular circumstance of the patient’s being a general practitioner, even greater information disclosure was required).
- 235.
Opinion 02HDC18414 (Health and Disability Commissioner, 6/4/04) (failure to provide contextualised information), pages 12–13.
- 236.
Opinion 08HDC20258 (Health and Disability Commissioner, 11/11/09) (a relatively new procedure); P.D.G. Skegg and Ron Paterson (eds) 2006, 139.
- 237.
Opinion 01HDC05619 (Health and Disability Commissioner, 31/07/02) (Hepatobiliary Surgeon).
- 238.
Medical Council of New Zealand Information, Choice of Treatment and Informed Consent (2011), para. 18.
- 239.
Joanna Manning 2004, 197–198 (noting that giving balanced information “has obvious significance for providers of complementary or innovative therapies”).
- 240.
Clause 3(1) of the Code (emphasis added).
- 241.
Clause 3(3) of the Code. Other relevant circumstances might include abusive behaviour that thwarts effective “history taking” during a consultation, or withholding information the consumer knows to be relevant. See, P.D.G. Skegg and Ron Paterson (General Editors) 2006, 48.
- 242.
Commonwealth of Australia 2002, page 47, para. 3.44 (emphasis added). Legislation 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).
- 243.
See, Right 4(1) of the Code (“Every consumer has the right to have services provided with reasonable care and skill” (emphasis added)). It reflects the common law standard of care in negligence.
- 244.
P.D.G. Skegg and Ron Paterson (General Editors) 2006, 48 (noting that the provider’s duty to provide information might in practice be reduced if there was a significant risk that the consumer’s health would be directly and detrimentally affected if the information was provided).
- 245.
The situation is very similar in the context of ACC. See, Injury Prevention, Rehabilitation, and Compensation Act 2001, s 32(2)(b). The New Zealand Injury Prevention, Rehabilitation, and Compensation Amendment Act excludes “personal injury that is solely attributable to a resource allocation decision” from cover. That means injury resulting from lack of access to treatment or timely treatment because of resource decisions will not result in cover. Only if a resource allocation decision is the sole or only reason for treatment being unavailable or delayed, which itself results in injury or death, does the exclusion apply. The exclusion would not apply to situations where an injury was caused by a resource allocation decision in conjunction with a clinical decision (a “mixed” decision). “Treatment” not only encompasses provision of treatments and failure to provide treatment, or to provide treatment in a timely manner, but also embraces information disclosure and obtaining or failing to obtain informed consent. See, Injury Prevention, Rehabilitation, and Compensation Act 2001, s 33(1)(a) (b) (c) (d) (e).
- 246.
Where scarcity of resources is involved, an organisational provider may need to show it took at least some steps to give effect to the consumer’s rights, and made some attempt to bring the shortage of resources to the attention of management or the relevant funding agency. In dealing with the issue of the understaffing of the emergency department, the Commissioner has chosen to find the district health board vicariously liable for the breach, rather than accepting the Clause 3 defence in relation to the register. See, P.D.G. Skegg and Ron Paterson (General Editors) 2006, 47–49.
- 247.
R.J. Paterson 1998, 583 (observing that medical decision-making/recommendation and disclosure are two different contexts).
- 248.
Opinion 09HDC00891 (Health and Disability Commissioner, 31/3/2010) (prioritization and management of a patient). In this Opinion, the Commissioner hinted that Right 4 (right to services of an appropriate standard) and Right 6 (right to be fully informed) of the Code have different remits. In a context where insufficiency of public funding necessitates prioritisation of patients, Right 4 required providers to appropriately assess and prioritise a patient’s level of need using relevant standards and/or guidelines. However, under the Right 6 of the Code, if the publicly funded service was not available to people with the patient’s level of need at that time, the provider needs to promptly and clearly inform the patient about: (1) the decision and reasons for it; (2) the need to monitor her condition and notify the DHB if any deterioration; and (3) management options, including the option of seeking private treatment, and the risks (if any) of no treatment.
- 249.
In the opinion of Medical Council of New Zealand, where there are delays in the publicly funded health system and the public system is not the only avenue for treatment, the doctor should also advise the patient where services may be obtained privately. When a decision has been made by the funder not to fund a specific service, what the Council expects doctors to do is: (1) Doctors who are placed in a position where they are unable to provide a preferred treatment are advised to inform the patient what the preferred treatment involves, what the next best option is and what this next best option involves. (2) Where possible, doctors should outline the rationale for treatment being limited or denied. Where the reasons have dimensions that go beyond the technical expertise of the doctor to resolve, the doctor should instead refer the patient to the funding or responsible agency for an explanation. See, Medical Council of New Zealand 2008, [25]–[28], [32].
- 250.
Health and Disability Commissioner Act 1994 (NZ), s 3. See also, Opinion 97HDC9933 (Health and Disability Commissioner) (a homeopath); Opinion 97HDC4036 (Health and Disability Commissioner) (a naturopath); Opinion 98HDC14193 (Health and Disability Commissioner, 7/1/2000) (Massage Therapist); Opinion 04HDC17805 (Health and Disability Commissioner, 8/11/2005) (Massage Therapist); Opinion 06HDC09882 (Health and Disability Commissioner, 25/1/2007) (Natural Therapies Practitioner); Opinion 06HDC12937 (Health and Disability Commissioner, 21/6/2007) (Massage Practitioner); Opinion 07HDC12714 (Health and Disability Commissioner, 31/1/2008) (Acupuncturist); Opinion 07HDC20616 (Health and Disability Commi-ssioner, 24/6/2008) (Chiropractor); Opinion 08HDC00218 (Health and Disability Commissioner, 16/12/2008) (Alternative therapy – Bioptron light therapy). Actions of CAM practitioners also fall within the jurisdiction of Human Rights Review Tribunal. See, Director of Health and Disability Proceedings v A [2003] NZHRRT 35 (1 December 2003) (an acupuncturist and practitioner of traditional Chinese medicine); Director of Health and Disability Proceedings v DG [2005] NZHRRT 2 (25 February 2005) (a practitioner of traditional Chinese medicine); Director of Health and Disability Proceedings v D G [2005] NZHRRT 3 (25 February 2005) (a practitioner of traditional Chinese medicine).
- 251.
Opinion 07HDC12714 (Health and Disability Commissioner, 31/1/2008) (Acupuncturist’s failure to warn the risks of coughing when the patient had needles in her back); Opinion 97HDC9933 (Health and Disability Commissioner) (a homeopath’s lack of recording and failure to provide information about possible side effects of a homeopathic remedy). However, information disclosure about the “risks, side effects, benefits” of treatment options is mainly formulated in the context of orthodox/conventional medicine. It remains questionable whether Right 6 can be applied smoothly and comfortably to the context of CAM. More and more people realise that clinical trials are not suitable to CAM. Should CAM providers give patients a clear risk-benefit analysis when CAMs are poorly researched?
- 252.
Opinion 97HDC4036 (Health and Disability Commissioner) (a naturopath, a deviation from the usual instructions on the product label was required due to the child’s age and feeding requirements, failure to provide information about how to administer a naturopathic remedy).
- 253.
Opinion 08HDC00218 (Health and Disability Commissioner, 16/12/2008) (Alternative therapy – Bioptron light therapy – A patient with breast cancer initially being resistant to pursuing conventional treatment (mastectomy plus chemotherapy)). In that Opinion, the patient (then aged 44) was diagnosed with cancer in her right breast. A breast surgeon advised the need of a mastectomy. The patient wanted to pursue alternative therapies even after being warned that there was no guarantee of a cure. The provider ran a Bioptron light therapy clinic. On her first encounter with the provider, the patient informed the provider of her diagnosis of breast cancer and her decision against having conventional medical treatment. The provider tried persuading her to reconsider her decision and told her of a successful case where a breast cancer patient combined chemotherapy with Bioptron light therapy. Despite this, the patient remained “adamant” against having medical treatment.
- 254.
Opinion 08HDC00218 (Health and Disability Commissioner, 16/12/2008) (Alternative therapy – Bioptron light therapy), pages 14–15 (noting that when suggesting or recommending alternative therapies, such as CAA tablets, liver tonic and plantain leaves, the provider should present the patient with an explanation of the options available and an assessment of the risks, benefits, and costs of those therapies).
- 255.
In the New Zealand’s Health Practitioners Competence Assurance Act, there is subsection which is called Hippocratic Clause or “homeopathic clause”. See, The Health Practitioners Competence Assurance Act 2003 (NZ), s 100(4) (“No person may be found guilty of a disciplinary offence under this Part merely because that person has adopted and practiced any theory of medicine or healing if, in doing so, the person has acted honestly and in good faith” (emphasis added)). It allows some measure of freedom for individual practitioners to choose what they believed to be the best thing for their patients. The stance of Medical Council of New Zealand towards CAM has changed a lot in the past few years. Compare, Medical Council of New Zealand Statement on Complementary and Alternative Medicine (2011), para. [3] (“When complementary and alternative medicines (CAM) have demonstrated benefits for the patient and have minimal risks, and patients have made an informed choice and given their informed consent, Council does not oppose their use.”), and para. [4] (acknowledging s 100(4) of the Health Practitioners Competence Assurance Act 2003 (NZ)); with Medical Council of New Zealand Guidelines on Complementary, Alternative or Unconventional Medicine (April 1999) (“There can obviously be no similar waiver for doctors whose practices show incompetence as judged by the standards of the Colleges and Societies the Medical Council uses as referral bodies, or as judged by the Medical Council itself, even if the incompetence arises from ‘the adoption in good faith of a particular theory of medicine or healing’.”). However, New Zealand medical practitioners should be cautious about adopting too liberal an interpretation of the clause. See, Tizard v Medical Council of New Zealand Unreported, High Court, Auckland, M. NO. 2390/91, 10 December 1992, Barker, Thorp and Smellie J.J. (“[W]hile several have seen ‘theory of medicine’ exceptions as being intended to provide room for minority views, no decision has recognized the idiosyncratic view of a single practitioner, unsupported by scientific proof or by a significant number of his or her fellow practitioners, as ‘a theory of medicine’.”); Re Gorringe 5/8/03, Medical Practitioners Disciplinary Tribunal (New Zealand) Decision No. 237/02/89D, available at www.mpdt.org.nz, para. [35], [36] (observing that “honest belief in the efficacy of a particular theory is not necessarily a sufficient answer”).
- 256.
Tizard v Medical Council of New Zealand Unreported, High Court, Auckland, M. NO. 2390/91, 10 December 1992, Barker, Thorp and Smellie J.J. See also, Re Gorringe 5/8/03, Medical Practitioners Disciplinary Tribunal (New Zealand) Decision No. 237/02/89D, available at www.mpdt.org.nz, para. [36].
- 257.
Tizard v Medical Council of New Zealand Unreported, High Court, Auckland, M. NO. 2390/91, 10 December 1992, Barker, Thorp and Smellie J.J.
- 258.
Re Gorringe 5/8/03, Medical Practitioners Disciplinary Tribunal (New Zealand) Decision No. 237/02/89D, available at www.mpdt.org.nz, para. [86]. The Re Gorringe decision was concerned with a “dual” practitioner, who was educated in both science and conventional medicine, and was a registered medical practitioner, holding a current practising certificate. The patients alleged that the reason they approached the practitioner was because he was “a medical practitioner” practising homeopathy. The Tribunal agreed that the practitioner was practising and held himself out to the public as a dual practitioner in conventional medicine and complementary remedies.
- 259.
Re Gorringe 5/8/03, Medical Practitioners Disciplinary Tribunal (New Zealand) Decision No. 237/02/89D, available at www.mpdt.org.nz, para. [52] (“where a registered medical practitioner practices ‘alternative’ or ‘complementary’ medicine, there is an onus on that practitioner to inform the patient not only of the nature of the alternative treatment offered but also the extent to which that is consistent with conventional theories of medicine and has, or does not have, the support of the majority of practitioners. ”). The Gorringe decision involved allegations of breach of the informed consent rules. It was alleged that (1) the practitioner carried out a non-conventional diagnostic technique, without giving an adequate explanation of it, particularly without advising his patient of “its advantages and disadvantages when compared to conventional and generally recognised diagnostic investigatory techniques” and of the degree to which the technique had been “scientifically evaluated for efficacy” as a diagnostic tool; (2) the practitioner provided and/or arranged to be provided various non-conventional treatments and required his patient to forego conventional medical treatment, without advising his patient of the risks, benefits and efficacy of the treatment options, including the purpose of, risks, benefits and efficacy of the non-conventional treatment. It was found that the practitioner did not respond adequately to his patients’ questions, offering his patients “very brief and insubstantial answers”. See also, Medical Council of New Zealand Statement on Complementary and Alternative Medicine (2011) paras [12]–[13] (adopting the Gorringe rule).
- 260.
Re Jackson 15/12/1999, Medical Practitioners Disciplinary Tribunal (New Zealand) Decision No. 103/99/49D (a general practitioner using manipulative therapy), para. [8], available at www.mpdt.org.nz.
- 261.
Re Jackson 15/12/1999, Medical Practitioners Disciplinary Tribunal (New Zealand) Decision No. 103/99/49D (a general practitioner using manipulative therapy) para. [13], available at www.mpdt.org.nz.
- 262.
Ian St George “Chapter 19: The doctor who uses complementary and alternative medicine practices” in Cole’s Medical Practice in New Zealand 2008, page [138].
- 263.
Re Gorringe 5/8/03, Medical Practitioners Disciplinary Tribunal (New Zealand) Decision No. 237/02/89D, available at www.mpdt.org.nz, para. [53].
- 264.
Re Gorringe 5/8/03, Medical Practitioners Disciplinary Tribunal (New Zealand) Decision No. 237/02/89D, available at www.mpdt.org.nz, para. [52].
- 265.
Re Gorringe 5/8/03, Medical Practitioners Disciplinary Tribunal (New Zealand) Decision No. 237/02/89D, available at www.mpdt.org.nz, para. [52].
- 266.
Opinion 03HDC19027 (Health and Disability Commissioner, 16/12/04) (A Christian practitioner offering a spiritual approach to treatment).
- 267.
Opinion 03HDC19027 (Health and Disability Commissioner, 16/12/04) (A Christian practitioner offering a spiritual approach to treatment).
- 268.
Medical Council of New Zealand Statement on Complementary and Alternative Medicine (2011) para [6].
- 269.
Medical Council of New Zealand Statement on Complementary and Alternative Medicine (2011) para. [9].
- 270.
See, Right 6(1) and (2) of the Code.
- 271.
Birch v University College Hospitals NHS Trust [2008] EWHC 2237 (QB), at [74].
- 272.
Birch v University College Hospitals NHS Trust [2008] EWHC 2237 (QB), at [81].
- 273.
Van Dyke v Grey Bruce Regional Health Centre (2005), 255 D.L.R. (4th) 397, 414–415, at [65]–[67].
- 274.
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.); Haughian v Paine (1987), 37 D.L.R. (4th) 624, 644–647 (finding that if the risks inherent in the surgery and the alternatives to surgery had been disclosed, a reasonable person in the patient’s position would not have proceeded to undergo the surgery).
- 275.
Seney v Crooks (1998), 166 D.L.R. (4th) 337, 361, at [95] (Alta. C.A.).
- 276.
Dickson v Pinder, 2010 ABQB 269, at [120].
- 277.
See, Chap. 5 (Sect. 5.5 “Geographically Unavailable Alternatives”; Sect. 5.6 “Alternative Provider”).
- 278.
See, Estate of Lapping v Group Health Co-op. of Puget Sound, 892 P.2d 1116 (Wash. App. Div. 2, 1995); Martin by Scoptur v Richards, 531 N.W.2d 70 (Wis. 1995); Madsen v Park Nicollet Med. Ctr., 431 N.W.2d 855, 861 (Minn.1988); Johnson By Adler v Kokemoor, 545 N.W. 2d 495, 506–507 (Wis. 1996); Howard v University of Medicine, 800 A.2d 73, 85 (N.J. 2002).
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Zhao, X. (2012). New Zealand Context and Beyond. 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_9
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