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Medical Law Exam Notes

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Who makes the offer in a doctor-patient relationship?
Basic principle of ‘who makes the offer’ comes from Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd [1953] 1 QB 401 Presentation of goods on a shelf was an invitation to treat; customer’s picking up of good from a shelf and presenting them for payment was an offer to buy (see Lord Birkett LJ) Devereux: the better view is that the doctor makes the offer, and the patient accepts However Picard (article Legal Liabilities of Doctors and Patients in Canada) – a patient’s request for treatment is regarded as the offer, and acceptance is signified by the doctor’s undertaking of the treatment This is a direct application of Boots, it would seem

Remember – this is unsettled!
In an exam question, bring up both arguments and make a decision as to which one fits better/would be accepted by the court Consideration

Recap: consideration is the price paid for the bargain
In the doctor-patient relationship, this is a promise to pay money: affirmed in Sidaway “…performing services in consideration for fees payable by the patient”. What if the patient cannot pay?
Money (i.e. currency or a promise to pay it) is not considered to be the only form of consideration in a doctor-patient relationship – it may be the giving up of a legal right Eg – the patient’s submission to treatment – when the patient agrees to be treated by a doctor, he/she gives up her right not to be touched in order for the doctor to treat Coggs v Bernard (1703) 92 ER 107; Banbury v Bank of Montreal [1918] AC 626 Cause of Action in Contract

Two causes of Action: Breach of Term or Breach of Warranty
Term – essential part of the agreement
2 possible remedies – Termination of contract and damages
Warranty – Non essential part of the contract
Limited to the remedy of damages.
Scope of contract
First, you must identify whether a contract does in fact exist between the Dr and patient Then to determine whether there has been a breach, the terms of the contract must be ascertained Express terms – this is relatively simple

Kennedy & Grubb – express terms are up to the parties to determine But there are limits on what may be agreed – they cannot agree to do that which would be contrary to public policy (eg sell an organ) However there are very few express terms in a Dr-patient contract (eg Dr unlikely to give a guarantee of cure)  so a patient who is aggrieved is most likely relying on an implied term or warranty. Implied terms

Test for Implied Terms – Moorcock
The term must be necessary to give business efficacy to the contract Evidenced by a reasonable person looking on who would have found that the parties presumed to have included this matter. Is there an implied term that a patient be cured? [Promise to Cure] *Eyre v Measday [1986] 1 All ER 488 (pg 140-147)

A woman consulted a gynaecologist to arrange a sterilisation operation  Dr stressed that the procedure was ‘irreversible’  however didn’t warn of 1% risk of operation being unsuccessful Husband and woman resumed sexual relations – woman fell pregnant and a healthy child was born The woman sued for breach of a contractual term  implied term that the Dr promised to render her infertile Claim dismissed at trial, woman appealed

Two issues raised by Slade LJ (at 488) in the Court of Appeal (1) Was the nature of the contract between the plaintiff and the defendant one by which the defendant contracted to render the plaintiff 100% sterile? Immediately dismissed by Slade LJ – ‘irreversible’ can not reasonably be construed as a representation that the operation is bound to achieve its acknowledged object (2) If not, did the contract contain a warranty by the defendant (express or implied) to the effect that the operation which he was to perform would have this effect? Held that there was no implied term or warranty that the Dr promised to ‘cure the patient’. The court relied on the Moorcock principle – a term can only be implied if it is necessary in the business sense to give efficacy to the contract In the absence of an express term or warranty, the court should be slow to imply against a medical man, an unqualified warranty as to the result of an intended operation (because it’s most unlikely that a responsible medical man would intend to give a warranty of that degree) Court said they would imply a term or warranty that a doctor would use reasonable skill and care The appeal was dismissed by the court of appeal

*Thake v Maurice [1986] 1 QB 644 (pg 145)
Vasectomy performed on man  No warning was given as to the possibility of the vase re-canalising (i.e. the man becoming fertile again)  The man’s wife became pregnant and gave birth to a healthy child – the man sued the surgeon for failed sterilisation At trial the man was successful, so the surgeon appealed

The court adopted the Eyre v Meadsay principle in applying the Moorcock principle However in this case the court went further, and made reference to comments made by Lord Denning MR in Greaves & Co (Contractors) Ltd v Baynham
Meikle & Partners [1975] 1 WLR 1095 about the employment of professionals Professionals are not usually regarded as warranting that they will achieve a desired result Moreover, such an assertion would not fit well with the universal warranty of reasonable care and skill, which reaffirms the inexactness of medical science Therefore, a professional cannot contractually guarantee success unless it is agreed in “clear and unequivocal terms”

“In my view, a doctor cannot be objectively regarded as guaranteeing the success of any operation or treatment unless he says as much in clear and unequivocal terms.” Nouse LJ Closing notes
How does Medicare affect the operation of this area of law?
Normally contracts of this type work 1-to-1 (only parties to the contract can sue under it – privity argument – Donahue v Stevenson) Bulk billing: the government pays for your visit to the doctor, so Medicare bulk billing is actually a contract between the Commonwealth and the doctor Thus if you are not a party to this contract, how may you sue the doctor? If you are bulk billed, at the end of the consultation you sign a form You assign your right to claim the benefit from the Govt to the doctor Therefore you are still paying the doctor and the doctor-patient contractual relationship is not affected. What if you see a doctor in the public health system?

No contractual rights because there is no doctor-patient contract – Dr is paid directly by the Govt Statute of limitations:
Limitation of Actions Act 1974 (Qld) – sets out a time period in which a person may bring an action General rule: cannot bring an action outside the time period specified – action is ‘time-barred’ It is generally not an automatic bar – a party can either rely or waive reliance on the statutory time period For some contracts, the limitation period is shorter than the usual 3 or 6 years: a patient has to get over the implied terms hurdles and make sure they lodge a claim within the limitation period Why would you choose to sue in contract?

Because the remoteness rules are more flexible in contract and it is easier to prove damages (see Hadley v Baxendale) Battery – Medicine as an intrusion
into personal autonomy

“It is a long established principle that the least touching of another, if unconsented to, gives rise to an action called battery (Cole v Turner (1704) 6 Mod 149 per Holt CJ).” (Devereux p 147) Touching need not be hostile: In Re F [1990] 2 AC 1 at 73 per Lord Goff Four elements of battery

Compare direct and indirect: see Scott v Shepherd (1773) 96 ER 525; Reynolds v Clarke (old English case) E.g. swinging a piece of wood at someone is direct versus putting it on the ground and they trip over it. Proposed test (from cases): If there is no time break between the action and the harm that results, this is a direct action. Break in time – indirect action However the test seems to break down in modern era – e.g. push a button and fire a missile, which causes harm some time in the future. Intentional;

Generally – If a person sets out to achieve a particular result Need not be an intention to cause harm on the part of the tortfeasor ‘Intention’ is a misnomer – in battery terms, it actually means a voluntary act Need some sort of positive act (rather than passive) – Innes v Wivey So: Must be a positive act, it must be voluntary and you need not prove that harm was intended. Application of force/interference;

This means any physical contact (so not really force, just contact) Cole v Turner – The slightest touching can amount to battery (had to be done with hostility) Re F (page 148) – Held that you do not need to prove a hostile intent Lack of consent

Usually used as a defence (rather than an element) – Re Marion Consent
Jones (in the book Medical Negligence at p 200) states there are three elements: (1) Volition: the decision to consent must be a free one
(2) Information: the patient must be provided with certain information about the treatment in order to make a treatment decision (3) Capacity: the patient must possess sufficient age and intelligence Volition – Consent must be freely given

Early Cases (19th Century) – Later v Braddell
A maids employer forced her to undergo an invasive pregnancy check Held: Given the relationship between her and her employer, it was not a case where her will was over worn  Therefore she had given free consent and there was no battery. A lot of earlier cases were cavalier about a patient being required to give consent

Modern Approach (Strict view):
Beausoleil v Sisters of Charity (1964) 53 DLR (2d) 65 (pg 149-151) P complained of back problems and she went to see an orthopedic surgeon  disc operation to be performed  Prior to the operation, P discussed that she wanted general as opposed to a spinal anaesthetic with surgeon  The surgeon agreed to the general anaesthesia On the day of the procedure, the patient was sedated and repeated to the staff on duty that she wanted a general anaesthetic The chief anaesthetist convinced her that she should have a spinal anaesthetic instead of a general He administered the spinal anaesthetic and although the operation was performed competently, she became paralysed from waist down. The Court Held: that the woman’s consent had been overborne by the will of the anaesthetist Her will was overborne by the pressure put on her by the anaesthetist and also the fact that she was under sedation (consent was not real) The court said that the doctor cannot put the patient in a situation that the patient has no other option but to consent. “Note that it is not enough that a patient is in a vulnerable position vis à vis the medical practitioner such that his consent might not be voluntary. It must actually be the case that his freedom to consent or refuse was overborne.” (Devereux, p 151) See Freeman v The Home Office (No 2) [1984] 1 QB 524:

Prisoner prescribed drugs  he said that he was forcefully administered the medication by the prison officers (but the court did not accept this evidence) Alternately he argued that because he was a prisoner he was vulnerable and can never give consent Held: Can’t presume that consent has been overborne simply because a person has an inferior or vulnerable status (must show that their will was actually overborne) Information

A patient must be given specific information about the procedure – but what information is relevant? Chatterton v Gerson [1981] QB 432
The plaintiff (Mrs Chatterson) who suffered chronic pain in the region surrounding a scar was referred to the defendant surgeon (Dr Gerson), who recommended the woman have an intrathecal block (a procedure blocking pain messages from the nerve to the brain) The doctor mentioned some risks, but did not mention the precise risk of side effects from which the plaintiff subsequently suffered After the operation, the woman was in so much pain that she could not bear to have any clothing on the site of her scar The plaintiff sued the defendant, arguing that the defendant failed to give her sufficient information about the procedure (ie advise her of the risk that developed), such that she did not give valid consent (therefore alleging the defendant had committed a battery) Her action in battery failed: the court held that once the patient is informed in broad terms of the nature of the treatment and gives her consent to it, no action in battery will lie. Note: statement by Cole J from Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 approved in Rogers v Whitaker (1992) 175 CLR 479: “It is well established … the failure to fully inform of risks does not vitiate consent provided that the patient is informed in broad terms of the procedure intended. Actions for failure to warn of risks lie in negligence, not trespass.” Essential Nature or Inherent Risk?

Can side effects be so serious that they alter the ‘nature of the treatment’? “The dividing line between risks that are incidental (not forming part of the nature of the treatment) and those side effects which are so serious as to alter the nature of the treatment is a fine one.” (Devereux p 157-8) Eg – contraceptive pill

This can be used for either preventing conception or regulating hormones/removing acne Issue in the UK – it is free for contraception but if prescribed otherwise, it is not – thus the nature of the treatment depends on the reason for which it was prescribed Sommerville thinks that it is possible to have a clear distinction between the nature of the treatment and the inherent risks of the treatment I.e., the more serious the risk, the
more likely it will be part of the essential nature of the treatment The key concept Sommerville argues: “… it has been held that not only non-disclosure of inevitable results of a procedure can vitiate battery-avoiding consent, but also non-disclosure of risks of which knowledge was ‘essential to an informed decision to undergo the operation’.” “Non-disclosure of a risk will not give rise to a cause of action in battery except where there has been a ‘misrepresentation or fraud to secure consent to … treatment.” “The true test of whether or not a cause of action in battery will lie for non-disclosure of a risk, provided the risk is serious and sufficiently likely of occurrence to relate to the basic nature and character of the act carried out, depends on the nature of the physician’s conduct with respect to the non-disclosure … It is not proposed that, if the physician negligently (i.e. unintentionally) fails to disclose or misrepresents a risk, he will be liable in negligence. If he intentionally does either of these things, the action will also lie in battery, provided that the risk which is not disclosed or misrepresented is fundamental enough to relate to the basic nature and character of the procedure. Thus, the presence or absence of intention with respect to the non-disclosure of a risk which relates to the basic nature and character of an intervention will determine the cause of action available for failure to obtain consent to that risk.” D v S (1981) LS (SA) JS 405

P went to see the D surgeon for breast reduction surgery to relieve headaches and neck pain Surgeon failed to inform P of possible risks including scaring, pain, oddly located nipples. Upon waking, the plaintiff had terrible scarring, was in severe pain and was attached to blood and IV drips  as a result she became distressed both physically and mentally. The plaintiff brought an action in battery, alleging that she had not consented to the treatment Held that the side effects were so serious that they altered the nature of the surgery itself The true nature of the treatment involved risks of scarring and blood drips, and if the plaintiff had been told of these, she would not have gone through with the treatment Held – an action in battery would stand.

Q: Is this case a one-off?

It could well be – however it is more likely to be a statement that the more risky the treatment, the more warning about the risks of the treatment is required What amounts to the Nature of the Treatment?

The descriptions of the physical intrusion the practitioner is to perform is the nature of the treatment, all else is secondary – Queen v Mental Health Act Commission ex parte X Therefore patient need not understand the precise physiological processes involved before he/she understands the nature of the treatment. This view is consistent with the general law of battery which sees consent to the D’s conduct rather than to its consequences. R v Raabe 1985 1 QD 115

2 men agreed to fight  1 took fence paling and beat him in head Held: Consent to physical actions performed, not necessarily to the consequences. R v Clarence 1889 22 QB 23
Man had sexual intercourse with his wife and knew he was infected with gonaria Claim dismissed on basis that knowledge of the consequences of the act was not relevant to the nature of the touching  Her consent to the touching was real. Nature as encompassing the beneficial or deleterious aspects of treatment: Two situations in which courts may hold that treatment is different in nature, despite being of the same physical scope as that which consent was given. (1) Distinguish between treatment that is for the benefit of the patient and one that is not. R v Rosinski (1824) 1 LEW CC 11

D held himself out as being able to cure disorders  approached by woman wanted to be cured of fits  D took of woman’s clothes and rubbed her with liquid from a bottle. Held: It was not done to cure the woman but for D’s own lude gratification Therefore woman did not consent to the nature of the procedure. She consented to a therapeutic procedure and that was not performed. R v Bolduc and Bird (1967) SCR 677

Bolduc was medical practitioner who was treating Mrs Osborne for an erosion of the cervix uteri  on one occasion during treatment Bird, introduced as an intern, attended wearing a white coat and stethoscope  She said she had no objections  He in fact had no med training. During the scope of the
procedure the Dr conducted examination of her vaginal region, including the insertion of a speculum. Bird stood 12-18 inches away and did not touch her at any time. Held: The nature and quality of the act which she had consented to was different to that which she had received. Finding was overturned by the Supreme Court of Canada???

(2) Nature of treatment can encompass whether the treatment is standard or experimental If the medical practitioner is giving treatment that is experimental, does that alter the nature of the treatment? Coughlan (1990) 2 WWR 77 (Canadian Case)

Man in motorcycle accident injured his left shoulder  referred to orthopaedic surgeon  initial diagnosis – painful arch syndrome  D Dr requested further x-rays and discovered narrowing of 5th and 6th circular space  Recommended 2 procedures (Anterior survival discectomy and instant inter-body fusion. Latter was a procedure invented by D (involved placing a plastic spacer between the vertebrae  College of surgeons notified D of concerns with procedure and asked him to take a voluntary moratorium of it  he refused. Workers compensation board refused to fund operation  P went ahead anyway. Plastic placer shifted forward into mans oesophagus causing physical irritation and mental distress  required 2 further operations to remove spacer. He commenced actions in negligence and battery

Held: By not informing the patient that the procedure was experimental, the plaintiff could not understand the nature of the procedure. R v Mental Health Act Commission ex parte X (English case)
Involved experimental treatment, but unlike Coughlin, D didn’t hide it. X was a paedophile  D physiatrist prescribed goserilin (used in treatment of prostate cancer – reduces testosterone levels). Held: In this case where treatment is not routinely used for the control of sexual urges and is not sold for this purpose. It is important that the applicant should realise that the use on him is a novel one and the full implications of use on young men had not been studied. This is an important part of the nature of the treatment Nature as encompassing safe or dangerous aspects of treatment: In some early cases, distinction made on basis of consequences flowing from the
touching Baril v Hama (1996) 116 New Law Journal

2 boys got tattoos on their arms  arms became inflamed and infected Court upheld action for battery on grounds that the boys had not consented to a touching of the type or nature that had taken place. Potts v North West Regional Health Authority

P agreed to be vaccinated against rubella  unknown to her the syringe she was injected with also contained the contraceptive drug depraprovera D held liable in battery:
Wasn’t just a question of level of intrusion because both drugs were administered using the same physical means. While she clearly agreed to be vaccinated against rubella, she did not anticipate nor wish for side effects of depraprovera (bleeding, loss of libido and depression. Does the fact that a person is not medically qualified matter in a battery action? The key question to be asked is, is the fact part of the essential nature of the treatment, or is it a surrounding circumstance? R v Maurantonia [1968] 1 OR 145

D was convicted of six counts of indecent assault, arising from a medical clinic in Toronto D admitted he was not a medical practitioner, but he held himself out as a medical practitioner He also admitted that the complainants only agreed to be treated by him as they thought he was a medical practitioner Q: What was the nature or essential quality/character of the act he performed? D argued that “… although the appellant may have fraudulently induced [the complainants] to submit to the examination or treatment upon the false representation that he was a physician, nevertheless there was no misrepresentation as to the nature and quality of the act performed.” The court disagreed with the defendant’s argument:

“Although superficially appealing, this argument cannot prevail … the words ‘nature and quality of the act’ should not be so narrowly construed as to include only the physical action but rather must be interpreted to encompass those concomitant circumstances which give meaning to the particular physical activity in question.” In these circumstances the court
said that it was within the essential qualities and nature of the act that the man was not qualified to practice medicine R v Mobilio [1991] 1 VR 339

A male radiographer was charged with several counts of indecent dealings with women in an ultrasound clinic The defendant had performed transvaginal ultrasound examinations on the women, and at no time did they expressly consent to these examinations The question for the court to consider was whether the defednant’s purpose for conducting the transvaginal ultrasounds were part of the nature and character of the act, or whether it was part of the inducement or surrounding circumstances The court discussed this in terms of a rape charge and with reference to Papadimitropoulos The court held that the women had consented to the transducer to be inserted into their vagina – this was the nature and character of the act Comparison to rape – the underlying policy consideration for a rape charge is to deter the introduction of an object into a woman’s vagina If a woman consents to the object’s insertion, there cannot be a rape charge, regardless of whether the woman believed the man to have a purpose different from his actual purpose Thus the fact that the D inserted the transducer for his own purpose did not form part of the nature and quality of the act, just fraud in the inducement rather than fraud in factum R v Richardson (1998) 43 BMLR 21

D was a registered dentist, but was suspended in 1996  proceeded to still carry out dentistry Mother of 2 patients complained to police as she thought that D was under the influence of alcohol and drugs (but this is not in issue); Charges were brought as she was practicing whilst disqualified. The court drew a distinction between civil and criminal consent The Crown argued that as the defendant had misrepresented her qualification to practice, there had been a mistake as to her identity, thus a fundamental mistake as to the nature and quality of the act, so consent may be vitiated The Court rejected this – the complainants were fully aware of the identity of the defendant; to say that the defendant’s disqualification formed part of her identity would distort the meaning of identity R Naveed Tabassum [2000] 2 Cr App R 328

The defendant asked several women to take part in a breast cancer survey to
enable him to prepare a database software package for sale to doctors Three women agreed to show the defendant their breasts – involved the D feeling them Each of the women said they only consented as they thought he was medically qualified It was held that there was fraud in the factum, and thus no valid consent Each of the women had consented to a medical act, not a sexual one Consent given on basis that D was medically qualified or that it was for a medical purpose Papadimitropoulos v R (1957) 98 CLR 249

A woman consented to sexual intercourse with a man as she mistakenly believed his untrue statement that they had been married on a trip to the registrar of marriages D was convicted of rape at first instance, HC held that the woman’s consent was real Her mistake was not a mistake as to the nature and character of the act; rather a mistake as to the existence of a marriage which induced her consent Reconciliation of the cases

One idea is that if they are not medically qualified there is a serious risk of injury Also, if they are not qualified they can be easily caught
On the other hand, if they are medically qualified, then it is likely that they will know the procedure and not cause injury If they do cause injury, they will know how to fix it
Summary of Nature of Treatment:
On the one hand we have an approach that says that the nature of the treatment encompasses merely the physical intrusions and any risks or side effects only sound in negligence and not battery On the other hand we have a series of cases that say that the nature of the treatment can be altered as to whether the treatment is regular or experimental; beneficial or not; and administered by a medical practitioner or not. Peter Skeg reconciles these cases by saying that policy considerations rightly loom large in any decision as to whether the procedure performed was the same as that given consent. The better view is that the nature of the treatment only extends to the physical intervention that is being performed. When will a patient have an action?

As a result of Chatterton v Gerson once a patient is informed in broad terms of the nature of the procedure (the physical intrusion) and they give their
consent no action in battery will sound. There are 2 Key Exceptions to this:

(1) Where the doctor agrees to perform one procedure but in fact performs another UK case – a boy went in to hospital for a tonsillectomy; came out with tonsils, but he was circumcised: clearly a battery. Marshall v Curry

A patient gave consent for the performance of an operation (hernia repair), but during the operation the Dr discovered that P had a diseased testicle  postponing the removal of the testicle may have resulted in P dying of septicaemia  justified on the grounds of emergency Except for a genuine emergency, the correct approach of the doctor would have been to identify the additional problem, close the patient up, wait until the patient recovered and then ask the patient again ‘do you want this procedure performed?’ NB: treatment must be necessary and not just convenient (Murray v McMurchy) (2) Consent is vitiated by fraud

A procedure given to someone without capacity (understanding that – making sense of info and believing it to be true) and without relevant court order or consent from someone who could give that valid consent, could give rise to a battery action. Where patient objects to treatment, understands non-treatment leads to death, doctor performs it anyway Malette v Shulman (1990) 67 DLR (4th) 321

Mrs M was involved in motor vehicle accident  Nurse found card with the women’s signature on it in her pocket, identifying P as a member of Jehovah’s Witnesses Under no situation, including the possibility of death, did she want a blood transfusion Card brought to the attention of Dr  he noted the card but gave her the blood transfusion regardless because she would have died  she sued the Dr and hospital in battery Issue: If emergency is recognised as an exception to the battery rule (and this women was clearly in an emergency situation), how can she sue in battery? Prior to In Re F, basis of emergency treatment was implied consent  if it’s clear that a person is not giving consent then implied consent is overridden Another view: Even if Lord Goff was right, the court found that as a matter
of law, if a person knows that someone else has refused consent in advance of something, that consent must be respected Action for battery allowed  The transfusion was a direct application of force without her consent It is actionable per se – don’t have to prove damage or loss

C.f. Sharin Qumsieh v The Guardianship and Administration Board and Lance Pilgrim [1998] VSCA 45 Woman went into labour; prior to her going into labour she stated that she did not want a blood transfusion (Jehovah witness)  she has signed a consent to treatment form prior to going into labour and an advance medical directive which noted this  she gave birth to healthy baby but her post surgical state deteriorated rapidly, she starting haemorrhaging, a radical hysterectomy was performed, she was transferred to ICU  was very anaemic and heavily sedated at this time Her husband, concerned that his wife may, die approached a firm of lawyers Guardianship and Administration Act 1998 (Vic) allowed the Victorian guardianship board to appoint a guardian for someone who is: A) under a disability

B) unable to make reasonable judgements in respect of any or all of the matters relating to the person in the circumstances C) in the need of a guardian
2 arguments:
1. Women was under a disability (close to death and in and out of consciousness because of sedation) and as a result was unable to make any judgements in respect of medical circumstances and therefore, was in need of a guardian Follow the strict meaning of the Guardianship Act – needed guardian appointed 2. Women had executed 2 documents while competent which clearly indicated that is she were to come incompetent for any reason, she did not want to have a blood transfusion Consistent with M v S – express refusal of consent was to be respected The board has less than an hour to make this decision before P would have irreversible brain damage The board went with option 1  the husband the husband was appointed as the woman’s guardian, which meant that he was empowered to make decisions about her medical treatment He instantly decided that his wife needed a blood transfusion The wife recovered and sued the guardianship tribunal, but the court upheld the guardianship law Note: apparently the board was never
referred to the advance medical directive, they only had the admission to hospital documents  the basis of the court’s decision is not entirely clear 1. It couldn’t be convinced that the women was competent even at the time when she signed the admission form 2. Agreed that M v S was good law in a CL sense but the statutory remedy here overcame that It is difficult to determine whether the approach in Qumsieh would be followed in other jurisdictions – difficult area Action in Battery vs Action in Negligence:

Battery is actionable per se – successful once the elements of battery are proven (provided no defenses are raised). Measure of damages in tort – put plaintiff in position that they would have been had the tort not been committed (Compensation). [Sometimes does not work very well] Malette v Shulman (1990) 67 DLR (4th) 321

What position would she be in if not given blood transfusion  dead Court struggled in trying to adapt the notion of damages to this case. In the end they gave her nominal damages + court costs.
Useful when Dr has done a different procedure or patient has no capacity to consent Ie situations where no damage has actually occurred
Negligence is not actionable per se:
In order to be successfully in negligence you need to prove damage or loss Barnett v Chelsea (pg 323) – summary below

Negligence – Medicine as a therapeutic alliance
* Watched episode of Cardiac Arrest: The Red Queen – just observed issues of concern Elements of Negligence:
(1) Duty of Care – no duty to world at large
(2) Breach of Duty – work out standard of care
(3) Causation – factual and legal
Duty of care
Starting point is the Donoghue v Stevenson [1932] AC 562 ‘neighbour principle’ One owes a duty to those you ought to reasonably have within one’s contemplation, as likely to be affected by your actions if you don’t act with reasonable care (i.e. test: is harm reasonably foreseeable It is well established (through Rogers v Whitaker (1992) 175 CLR 479 and a
multitude of later cases) that a doctor owes a patient a duty of care. So there is no issue in establishing a duty of care between a Dr and patient. However questions arise as to when the duty commences and to whom the duty is owed. When does the duty commence?

A doctor is not under any legal obligation to render any assistance to a stranger (stemming from the ‘mere omissions’ rule) – no good Samaritan law Example: if medical practitioner is on a plane (has had a few drinks) and a passenger has chest pains, they are not liable for failing to attend patient – no previous relationship (cf a lifeguard) However if the person were to be a patient of the doctor, the situation is different This was considered to be the law until:

Lowns v Woods (unreported, NSW CA, 5 February 1996)
Boy suffering from an epileptic fit  mother sent daughter to get a doctor from nearby surgery On the daughter’s evidence (accepted by court), she alerted Dr Lowns of situation  He refused to come and told her to call an ambulance  the ambulance took a long time to arrive When treatment was finally administered, the boy had entered status epilepticus (fit after fit) As a result the boy suffered severe brain damage; his parents sued Dr Lowns on his behalf Boy was never a patient of D  so no pre-existing relationship between the boy and Dr Lowns Dr Lowns’ evidence was that he had no recollection of the conversation with the girl, and if he had been asked to help then he would have There was a statutory duty in NSW for doctors to attend in emergency situations Q: Did a Dr with no prior existing relationship, owe a duty of care to a patient? Held – 2:1, duty of care owed by the doctor

Kirby J – Pursuant to certain ethical obligations the Dr should have attended. The court focussed on proximity – The Dr ought to have known that if he didn’t attend, then there would be serious consequences. Binding on us however:

Unreported NSWCA decision

Based on proximity (abolished in Australia by Woolcock Street Investments Pty Ltd v GCD Pty Ltd (2004) 205 ALR 522) So real question as to whether Woods is still good law.
The court will take into account the priority of patients and emergencies, according to their respective urgency [But it is always difficult to work out priorities] To whom is the Duty of Care Owed: – Duties of care to third parties BT v Oei [1999] NSWSC 1082

AT (BT’s partner) consulted the D (medical practitioner) regarding an illness (characterised by swollen glands, sore throat, fever etc)  3 months later AT went back complaining of fever, urinary symptoms, bilateral abdominal pain and lethargy  arranged for AT to undergo blood tests Test results indicated he was suffering from urinary tract infection and Hepatitis B. Remarkable for 2 reasons – firstly it is unusual for males to suffer urinary track infection and secondly if you have a urinary track infection it is unlikely that you’ll have hep B Led to D questioning AT’s sexual activities to which the patient referred to ‘casual exploits’ as a possible source of his Hepatitis B infection. The doctor gave AT two pamphlets: one on Hep B, the other on safe sex AT responded ‘don’t worry, I don’t have any energy’

Unbeknownst to the doctor, AT began a relationship with BT which AT did not disclose AT (who was HIV+) transmitted it to BT
AT died of liver failure, and BT acquired AIDS – sued the defendant in negligence on the basis that her existence should have been contemplated by the doctor Issue: Did the defendant owe a duty of care to BT even though she was not a patient? Held: D was under a duty to counsel AT about getting a blood test and counsel him about safe sex Failure to do this caused BT to suffer harm (acquisition of aids) Dr owed duty of care to AT but consequential damage suffered by BT was not so remote that it should be disregarded Direct duty to the third party – Dr liable for negligence

Note: In addition to a duty of care, BT had to prove that had AT been counselled, he wouldn’t have had unprotected sex with BT Therefore, if AT was still alive the defence would try to get AT to say that he wouldn’t have practiced safe sex regardless  would have changed the outcome as there
would be no causation [below] C.f. Harvey and Ors v PD [2004] NSWCA 97

Man and woman saw a Dr, explained they wanted to get married and wanted to be tested for STDs Male was HIV positive and female was not  Dr informed each patient of their diagnosis separately The doctor failed to counsel the male about safe sex – as a result, the female acquired HIV Held: the appropriate response for a Dr consulted by 2 patients together is to give the results to them together or ask for permission to give results separately – negligence successful Establishing Breach – Scope of the Duty of Care:

Bolum Standard – Pre 1992 (Rogers v Whittaker)
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 B suffered from depression – as treatment he underwent electronic convulsive therapy (ECT) ECT causes muscle spasms, so ordinarily patient is strapped down / given muscle relaxants However the therapists failed to restrain him or administer a muscle relaxant, so when B received the ECT, his body convulsed and he fell off the bed fracturing bones – sued doctor and hospital Held: The test for negligence in a medical context is the standard of the ordinary skilled man exercising or professing to exercise a certain skill – McNaire J In the case of a medical man, negligence means failure to act in accordance with the standards of a reasonably competent medical men at the time However note that there may be one or more proper standards for a particular procedure, but provided that the Dr acts in accordance with at least one of these, he is not negligent. Also note important limitation: ‘you must not look with 1957 spectacles at what happened in 1954’ (McNair J). So important to look at the state of medical knowledge as at the date of the incident not the date of trial. [Roe v Minister of Health (below)] Roe v Minister of Health [1954] 2 QB 66

Two men underwent procedures involving spinal anaesthetics
The anaesthetics were stored in glass ampoules immersed in carbolic acid In 1947, tiny cracks appeared in the ampoules allowing carbolic acid to mix with the phenol – the men who were treated with the damaged anaesthetic were paralysed The risk was well known as at the date of trial (1954) but not at the date of the incident (1947) Held: must look at the standard as at the
date of incident rather than through the prism of hindsight Dwan v Farquhar [1988] 1 Qd R 234 [modern application of Roe] In 1983, a patient underwent a medical procedure and as part of procedure had a blood transfusion Patient subsequently contracted AIDS as result of blood transfusion and sued in negligence As at the date of incident, there was no expert opinion that a competent doctor ought to have been aware of the danger of contracting AIDS from a blood transfusion In 1988 (the date of trial) the danger was well known

Thus must look at the situation as it existed in 1983

Q: Does the standard of care for a country doctor differ from that of a city doctor? No: Geissman v O’Keefe (unreported, NSWSC, 25 November 1994) per Simpson J NB: Calculus of negligence can be used if difficult to determine standard of care according to Bolam 1. Probably of harm and magnitude of that harm VERSUS

Social utility of risky behaviour and cost of avoiding that harm Breach: particular situations – (using Bolam Standard of Care) Failure to take medical history
Chin Keow v Government of Malaysia [1967] 1 WLR 813
A woman complained of ulcers on her legs – nurse on duty took the patient to see the Dr in charge He examined her and gave an injection of penicillin  died from severe allergic reaction. It was not in dispute that the doctor failed to take the patient’s medical history – had he done so, he would have known about the allergy (Court was critical of this). Privy council: the fatal injection should never have been given Held: The doctor’s duty to take a medical history is an ongoing duty This might include for example a duty to revise a diagnosis. Giurelli v Girgis (1980) 24 SASR 264

P broke his leg and had surgery to insert a metal plate into it He was a difficult patient – he complained about many things After his operation he was referred to a physio, to whom he complained of severe pain in his leg At one stage in treatment the physio told the patient to stand to test its weight bearing ability He refused until the surgeon attended, physio told
him to ‘stop this nonsense’ and stand up The leg gave way and was fractured in three places – the man sued The court found negligence:

The court was highly critical of a number of factors:
The limited amount of time the doctor allocated to the patient’s consultation The doctor’s failure to listen to P’s clear complaints of pain – clear indication that leg wasn’t right Note: the standard of care of a surgeon as expressed by Jones in Medical Negligence: “A medical man who holds himself out as being a specialist in a particular field, whether it is in the treatment of certain conditions or in the use of certain apparatus or in any other way, will necessarily be judged by higher standards than the ordinary practitioner who does not profess any such specialized skill … [but] the specialist will not [need] to attain the very highest degree of skill and competence but to the ordinary level obtaining amongst those who specialise in the same subject.” Locher v Turner

P had complained to GP about rector bleeding  Demmock J found that GP should have listened to complaints and ordered for tests  This in turn would have earlier diagnosed P’s cancer and allowed a more successful treatment. At date of trial, P had less than 12 months life expectancy.

Causing (or exacerbating) an injury to a patient while that patient is undergoing surgery Paton and Anor v Parker [1941] 65 CLR 187
P was admitted to hospital for an operation –operating theatre was a long thin rectangular room Mounted half way up the wall of the room were electric bar radiators The surgeon asked the nurse to turn on the heaters because it was cold Bottle of ether (an early anaesthetic) was knocked over and smashed, smoke drifted into the air vent, a fire broke out and P was severely burned. Held: Hospital and medical staff were negligent.

There was a clear duty of care owed to someone who was unconscious “There could be few greater examples of negligence than a patient suffering a sever injury unrelated to the nature of the surgery for which they had been admitted. Leaving foreign matter inside the patient (ie failure to remove foreign objects) Mahon v Osbourne [1939] KB 14

Man had a perforated duodenal ulcer  rushed to hospital for an operation – however he had just had a full meal he exhibited a poor tolerance to the anaesthetic (risk that if anesthetized for too long he wouldn’t wake up (so it was imperative to perform the operation quickly). The peristalsis made it difficult for the surgeon to see all of what was going on When they opened up the man and started the operation, the theatre sister counted and noted on a blackboard the number of swabs going in and out of the patient. In addition the swabs were also weighed; each swab also had a flag on its end Despite the checks, the surgeons left one swab in the patient  patient contracted sepsis and died Held: That leaving foreign matter in the patient was not enough to say that there was negligence Have to show that what happened had fallen below the standard of reasonable care. In this case, the surgeon had met the standard of care expected He had balanced the risks of the patient’s intolerance to the anaesthetic and problems resulting from his full stomach (gag reflex is supressed under anaesthetic) C.f. Chasney v Anderson (1950) 4 DLR 223

Child went into hospital for tonsillectomy and choked on a sponge left in the base of his nostrils The surgeon didn’t use sponges that had tape or flags attached and there was no nurse counting the sponges, like in Mahon v Osbourne He did ask an assistant surgeon whether all the sponges had been removed after the operation and having been assured that they had, the doctor felt around again and couldn’t find anything. The court had no difficulty in establishing that the surgeon was negligent M v O: emergency situation  risk of patient dying  every reasonable safety precaution was put into place C v A: routine operation  palpable lack of reasonable safety precautions

Other situations
Hocking v Bell [1948] WN 21: part of a drainage pipe left in patient  surgeon negligent Gloning v Miller (1954) 1 DLR 372: forceps left in a patient, surgeon found negligent Dryden v Surrey County Council and Stewart [1936] 2 All ER 535: surgical gauze “plugging” left in patient, surgeon found negligent In all of these cases except for Mahon v Osbourne, the
surgeon was found negligent – why wasn’t the surgeon in Mahon v Osbourne liable for leaving foreign matter in a patient? Jones in Medical Negligence suggests that Chasney v Anderson is the normal run of things i.e. if you leave something within the patient, you will be liable for negligence Mahon v Osbourne is therefore an exception justified by the competing priorities i.e. patient showed poor tolerance to anesthetic and would die if he was left under anesthetic for too long, as well as the fact that he had food contents in his stomach Also note the precautions taken in Mahon i.e. flags were administered on the swabs and the swabs were weighed and counted swabs; but in Chasney v Anderson, there were fewer precautions taken The conclusion is that doctors simply must exercise due and reasonable care Error In Treatment

Barnett v Chelsea (pg 323)
Workmen on site had some tea  began to feel ill  went to hospital Nurse summoned the Dr on duty he was tired, told nurse to go away Nurse examined them again and became quite alarmed  told Dr again that he should see these people  told nurse its obviously a stomach upset and to tell them to go home and get liquids. Turns out he had ingested arsenic in his tea  died that night Sued hospital in negligence

Hospital agreed that they owed a duty of care and that they breached it However the hospital called a toxicologist who gave evidence that even if the doctor had showed up and gotten the diagnosis first up, the mans poisoning was so advance that he would have died anyways Therefore the breach did not cause any additional costs  therefore not liable Geissman v O’Keefe

P twisted her ankle  examined by local GP who advised her to take some aspirin She saw another Dr later on during visit to Mt Tamborine  Dr arranged x-ray, gave her aspirin and diagnosed her has having a torn ligament with a spur Subsequently went to orthopaedic surgeon  applied plaster cast to ankle Upon removal of her cast her foot was ‘filthy’ and it ‘stunk’  Foot was stiff and when the Dr injected anaesthetic into it it bled. She was then sent to hospital to have spur removed  her foot became
progressively painful and a strange puss found coming out of it. Surgery did not take place for fear that the puss would case infection to the bone She continued to complain that it was red, throbbing and hot  went back into hospital and given painkilling injection and drip  complained that she was sick and in pain. Held: there was a significant error in treatment in not finding what the nature of the infection was so it could be appropriately treated (wasn’t responding to what they gave) Court was also critical of the 2nd Dr of simply accepting what the previous orthopaedic surgeon had done  Further investigations should have been made. Jones v Manchseter Corporation: Patient suffered harm after receiving excessive amount of anesthetic Claytons Case: Administration of excessive amount of drug following misreading of dosage instructions Important note: not every error in treatment will automatically be negligence. Even if a procedure is performed correctly, damage can still be caused – need to show why the procedure failed. Only errors which fall below that of a reasonably competent MP will lead to negligence See Atkinson J in Hancock v State of Queensland [2002] QSC 27 Concerned a failed sterilization procedure for Mrs Hancock

Although there was a clear failure of sterilisation it was a ‘known inexplicable failure rate’ of sterilisation procedures rather than negligence of the surgeon Additional damage caused in surgery:

A higher duty of care is required where a patient is already suffering from injury Markaboui v Western Sydney Area Health Service [2005] NSWSC 649. Sometimes even if the procedure has been performed in a non negligent manner, the patient may suffer additional damage from the procedure and it is clear that the patient must be informed of this potential additional damage: if the patient is not informed and is as a consequence prevented from seeking remedial treatment, that is negligence in itself Wighton v Arnot [2005] NSWSC 637

A woman went to see a surgeon in NSW – she complained of a lump on the right side of her neck The surgeon performed 3 procedures on her: during the third procedure, the surgeon thought that he may have severed the right spinal
accessory nerve After the operations, he failed to inform the patient of this. By the time she found out it was too late to have it successfully repaired Held: the practitioner had been negligent in not telling her about the damage he cause to her during the operation, and hence prevented her from fixing the problem. Causation:

Wighton is subject to causation: it must be proved that the breach caused the harm What must be proved is that by not being told about the potential injury caused during a procedure/operation, and hence not seeking treatment, it must be proved that the patient would have been deprived of a chance to recover. Stacey v Chiddy (1993) 4 Med LR 345

Trial judge found a GP was negligent in performing a breast exam and failing to give the woman proper advice regarding a negative response she experienced from mammograms and ultrasound However, the trial judge said that malignant growths which formed 15 months later were unrelated to the presence of earlier cysts which could have been detected by a competent breast exam Smith v Lennard (unreported, NSWSC, Studdert J, 7 September 1994) A patient had been to see his doctor in 1989 complaining of difficulties swallowing and pain 4 years later in 1993, an endoscopy revealed carcinoma (stomach cancer) The trial judge concluded that it was unlikely that the cancer would have been detected in 1989, even though the gastric reflux was attributable to the carcinoma Note: many of these cases are against pathologists who fail to diagnose diseases

Errors in Diagnosis (linked to causation):
Wood v Queensland Medical Laboratories, unreported, QSC, 16 December 1994 In 1990 P was in Bris visiting his mother  concerned about a mole on his back (it was small but changed colour)  Saw doctor, who excised the mole and sent it to Ds for pathology test Tests came back indicating it was benign (no malignancy in the mole) In 1993 the plaintiff moved to Mossman in far north Qld, where his grandmother lived; for some time before he moved, he’d been feeling unwell. His weight had dropped from 72.5 kg to 65 kg; suffered from lethargy and nausea; noticed a lump developing in his left armpit. P went to a GP, who gave him some antibiotics to get rid of the lump, but the
lump didn’t go away He spoke with his mother, who worked for the Cairns Base Hospital – she arranged for the plaintiff to be admitted to the hospital and he was found to have melanoma in 20 out of 23 lymph nodes At trial, the plaintiff had less than 6 months to live

Held: The defendants had failed to correctly diagnosed his condition in circumstances that a reasonable pathologist would have done so. O’Shea v Sullivan and Macquarie Pathological Services (1994) P had reported suffering bleeding after having sexDr ordered a pap smear test  test sent to the D’s was falsely reported to them as being negative. Successful in negligence action against both GP and pathology service for failing to diagnose cancer. GP was held liable in negligence because, by failing to refer the patient that showed clear symptoms to a specialist, he had failed to do what a reasonable GP would have done Stairmand v Baker

P was misdiagnosis of breast cancer.
Court found that if the P had been earlier diagnosed she would have lived an extra 7 years and would have experienced less pain and suffering In particular the court noted that the P had to undergo chemotherapy which would have been unnecessary if the cancer was earlier diagnosed. Ie incorrect diagnosis that prevents P getting treatment will sound in damages

Errors in Diagnosis – Resulting in Loss of Opportunity to undertake Efficacious Treatment

Flinders Medical Centre and Anor v Waller and Anor [2005] SASC 155 Over a period of years, P complained of persistent back pain – told by Dr after a series of tests that she had multiple sclerosis  in fact she had a tumor at the end of her spine. By the time the correct diagnosis had been made it was impossible for the tumor to be treated. If correct diagnosis had been made, she could have been treated. Held: Dr was negligent in not diagnosing the tumor early and removing it Failure to follow up

Kite v Malycha (1998) 71 SASR 321
Plaintiff complained of a lump in her breast D surgeon performed a fine
needle aspiration  she was told to come back at later date to get results  P never came back. There was only 1 secretary for four practitioners  When Mrs K’s medical report came in, it was not correctly filed; the doctor hence never received the results, and did not follow up with Mrs Kite Turned out she had breast cancer  She alleged that had the doctor followed up with her, she would have been able to treat the cancer quickly Court: The doctor had been negligent

He saw a patient with a potentially serious illness, it was incumbent on him to chase her up to get the results. The doctor argued that Mrs K should come back and check her results anyway i.e. that she was contributorily negligent, meaning that any damages awarded to her should be reduced Court: no – the absolute duty is on the GP, not on the patient and the court refused to minimise the damages Note – Limitation of Actions Act 1974 (Qld) – time runs from the consultation Tai v Hatzistavrou [1999] NSWCA 306

P saw a specialist gynaecologist complaining of excessive bleeding  recommended that a certain procedure be conducted at a hospital located across the road from D’s specialist room. His practice was that if he was referring someone to the hospital, he would fill out a form, and get the patient to take the form across the road to the hospital The hospital would book the patient in and subsequently notify the patient. The patient was never contacted by the hospital or the doctor to carry out the operation – she just assumed that this was just a problem of delay within the health system The woman actually had uterine cancer

It was also proven that if proper treatment/detection had been carried out, she would have undergone correct treatment and beaten the cancer At the first day of trial, D said that the patient never lodged the form at the hospital The hospital argued this because if this argument succeeded, the woman would not be able to prove breach or causation of damage However, on 2nd day of trial the hospital clerk found the woman’s form which was lodge correctly The court applied Kite v Malycha and established that the doctor did not have an accurate system for filing forms and following up patients and were therefore negligent. Wang v Central Sydney Area Health Service
[2000] NSWSC 515 – Failure to counsel Mr Wang was ‘king hit’ walking the streets  wondered home and 2 friends took him to hospital Triage was undertaken whereby the hospital staff assess and treat the most urgent cases first Nurse assessed that Wang was not a high risk patient and several patients were seen before him The friends of W insisted that he be seen urgently

After some time, there was a change in shift and the new nurse on duty gave the same advice Finally the group got fed up of waiting and left (nursing staff said it was fine) They went down the road to ‘Superclinic’

Dr at Superclinic examined Mr Wang and advised him go back to the hospital and get a head x-ray; But friends said that they weren’t going back
The Superclinic doctor gave Mr Wang some superficial treatment The doctor also told Mr Wangand friends to come back if he started to experience pupil dilation, vomiting, convulsions, drowsiness, weak limbs etc In middle of the night Mr Wang started vomiting, became disorientated etc. He suffered permanent brain damage.

Hospital’s defence: that patients are free to come and go as they please and if the hospital nurse had restrained Mr Wang, the hospital would have been liable in battery. Court: Disagreed – The hospital had a duty to counsel Mr Wang and prevent him from leaving Medical staff were negligent in releasing W without counselling him. If W was insistent, they should have made him sign an appropriate discharge form Note: Mr Wang not only sued the hospital but also the doctor at the Superclinic Allegation against Dr was that he should have counselled W to stay where he was and that he would monitor him The court dismissed the claim against the Dr on the basis that he had limited resources available to him and had competing patients. And that he had in effect given the correct advice to them to go back to the hospital. “I accept that Dr Katelaris did provide that advice to the group [to return to the hospital], and that he offered to write a letter in an attempt to ensure that the plaintiff would be seen without delay. I accept also that that recommendation met with firm resistance, such that he saw no point in pursuing it […] I am satisfied that Dr Katelaris himself saw a
return to the hospital as the best course, but I also accept that he could not have persuaded the group to do so […] Apart from the advice he furnished about signs of deterioration of the plaintiff’s condition, he emphasized that the plaintiff must not be left alone […] I consider that his conduct was reasonable in the situation with which he was confronted.” (Wang per Hidden J)

Although a Dr has a duty to follow up a seriously ill patient, they cannot restrain a seriously ill patient. Under laws of battery you can refuse consent to any procedure. Therefore if a Dr prevented a patient from leaving it would amount to battery. What would be reasonable under the circumstances is for the Dr to council the patient about the consequences of leaving. Duty to appropriately train staff

Doctors owe a duty to their patients to train nurses/staff to identify and hence prioritise patients with urgent needs Alexander v Heise & Anor [2001] NSWSC 69 – Failure to prioritise Woman’s husband woke up in the middle of the night complaining of extreme headaches  this was unusual and the wife gave him migraine tablets The next morning, the woman suggested that the husband see a doctor for a full medical checkup: he agreed and asked his wife to make an appointment later in the day, as he worked in the city She went to a prearranged medical appointment and then asked the receptionist to set an appointment for her husband. She expressed the husband’s symptoms to the receptionist in vague terms Was mention of a prostate exam – (disputed as to whether the headaches were mentioned The court accepted the woman’s view over that of the medical practitioners By the time husband got to see the Dr he had died of a brain aneurysm The two problems that faced the court were these:

DOC: Only the wife was seeing the doctor, but this was not a problem because of the doctor’s duty owed to third parties established in Lowns v Woods and BT v Oei – this was established Breach of DOC: In the circumstances of the case, that duty had never been breached because the wife didn’t say that anything was urgent; it was raised in the context of getting a seemingly standard check-up and the husband wasn’t there. A medical receptionist
acting reasonably and prudently would not have appreciated that Mr A would could have a life threatening condition on the information provided. In obiter the court said:

(1) GP had duty of care to properly instruct receptionist on the proper management of patients who present with complaints that may warrant urgent attention. (2) Was there an independent duty of care owed by the receptionist to patient?? (3) If answer to (2) is yes, do we then attach liability to the Dr??? Breach: the appropriate standard of care and material risks

Dr’s failure to advise of risk doesn’t sound in battery, it sounds in negligence The risks required to be divulged to patients depends on the application of the Bolam standard The Bolam standard (i.e. the standard of a reasonable competent band of medical practitioners) was altered by the High Court in 1992 in: Rogers v Whitaker (1992) 175 CLR 479

Mrs Whitaker had a childhood injury in which her right eye was disfigured She consulted Rogers, the surgeon, who said that the operation he could do for her would not only increase her sight in her right eye, but also reduce the disfiguration Leading into operation she became worried about losing sight in her good eye and asked if they should cover up of her good left eye so they didn’t operate on it. There was no problem in the performance of the procedure and no evidence that is had been carried out negligently – however there was a 1/14000 risk that after the operation, Mrs Whitaker may develop sympathetic ophthalmia in her good left eye Not only did the sight in her defective eye not improve but he became ‘almost totally blind’ in her good eye – so she sued Dr Rogers D relied on Bolam: Saying that a reasonable practitioner would not have told the patient because it was such a rare complication. He called a reasonably confident and competent group of medical practitioners to testify that they would have done the same thing had they carried out the operation However, the High Court reviewed the law of medical negligence: “The duty of a medical practitioner to exercise reasonable care and skill in the provision of professional advice and treatment is a single comprehensive duty. However, the factors according to which a court determines whether a medical practitioner is in breach of the requisite standard of care will vary according to whether it is a case involving diagnosis, treatment or the provision of information or advice …” -Rogers v Whitaker per Mason CJ, Brennan, Dawson, Toohey JJ HC said that there was one comprehensive duty owed by a Dr to a patient comprised of 3 parts: Diagnosis (eg Chin Keow)

Information/advice; and
Treatment (Wighton v Arnot – duty to treat)
HC also said that advice was of a different nature to diagnosis and treatment – The doctor has a duty to advise of ‘material risks’ of an operation/treatment/procedure: 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. Exception: Therapeutic privilege – divulging risk to patient would cause more harm that good (rare) So this is essentially a move away from Bolam: Two standards of care: Bolam standard (profession centred test) in respect of diagnosis and treatment Rogers v Whitaker (patient centred test) for advice

So after Rogers if acting for a patient who wants to sue a doctor for failing to advise of material risks: Need to prove that:
(1) There is a Dr-patient relationship (a duty of care);
(2) He has breached it by not divulging of a material risk;
A risk that the doctor ought to have reasonably been aware that the patient would attach significance to the material risk (3) If the patient had been told of the material risks, they would not have undergone the procedure [Causation] See Chappell v Hart 195 CLR 232

Mrs Hart (P) had been having some problems with her throat  D surgeon recommended that she have an operation on her oesophagus and voice box. Said she ‘did not want to end up like Neville Rann’ (NSW premier with gravelly voice) In the course of the operation her oesophagus was pierced and she developed mediastinitis (an infection that can occur as a random even without negligence) She sued D for failing to warn her of the risks of mediastinitis and of the damage to her voice box. It was a material risk as it was made clear to the Dr that she didn’t want a croaky voice She also needed to prove that if she had known of the risk she wouldn’t have had the procedure In cross examination, counsel for the defence asked the woman this The woman said yes, but she would have elected a more experienced surgeon Prof Devereux criticised the decision as he felt the woman could not prove causation However on appeal, the High Court affirmed that the woman can in fact prove causation: Dr has a duty to say that because of this risk, you should see a more experienced surgeon: “It is clear that, in order to prove causation, the patient needs to prove that if he or she had been informed of the risk, he or she would have avoided the risk. This, however, is not to say that the patient needs to prove that he or she would not have had the medical procedure performed. The High Court has held that, if the patient had been informed of the risk and would have elected to have the procedure performed by a more experience (and thus more competent) practitioner, then causation is satisfied. This would seem to be on the basis that the chances of the risk actually occurring lessen if a more competent practitioner performs the procedure.” Note […] the strong dissenting judgment of McHugh J [in Chappel v Hart]. –Devereux p 589

Freckleton – points out how potentially far reaching the ‘material risk’ requirement can be Eg go to see a surgeon, who has not slept all day, who is drunk, who has high blood pressure: which of these things must the doctor tell you about? What risks must you be informed of and which risks are material? Bustos v Hair Transplant Pty Ltd and Peter Wearne (unreported, Cooper DCJ, NSWDC, 20 December 1994, 30978 of 1986) P got hair transplant procedure (juri flap)  his uncle successfully had the same procedure done P claimed that the hair transplant Co failed to advise him of risks in the procedure. This included the failure of the transplanted section to cover the recipient area; droop caused by excess skin; altered sensation; and a neuroma (caused him headaches) These side effects ultimately resulted in ‘a psychiatric disorder, the breakdown of his marriage, the collapse of his restaurant and a subsequent inability to work’ Argued that the Dr failed to advise him of material risks associated with the procedure The court described the man as keen to the point of desperation to have the hair transplant procedure done  therefore even if he was told of the risks he would have had it done anyway Cf. Berger v Mutton (unreported), Twigg DCJ Dist Ct (NSW, 22 November 1994, 3584 of 1990) P (48 year old woman) trained and worked as a nurse: she had extensive experience in surgery, trauma and oncology (cancer treatment)  at time of proceeding she was director of nursing home She had recurring abdominal pain, accompanied by vaginal and rectal bleeding 

She consulted the defendant with the concern that she may have cancer The Dr undertook some examinations, during which the plaintiff’s bowel was perforated P alleged that the Dr failed to advise her of the material risk of perforation of the bowel as a result of which she suffered initial shock, extended hospital stay, pain, anxiety, insomnia and nightmares. Held: the woman did know of the risks of perforation of the bowel, as she had a similar procedure done a few years back, as well as the fact that she had experience in oncology Also found that the doctor had not breached his duty of care because the doctor made the woman aware of the risks involved Further the court said that she was so worried about having cancer that the knowledge of the risks made no difference as to her determination of whether to have the procedure. Rosenberg v Percival [2001] HCA 18

Experienced nurse (Percival) consulted an oral surgeon about alignment of her upper and lower jaw Surgeon performed osteotomy, but didn’t inform her of risk of temporo-mandibular joint problems Court restated principles of Rogers: making it clear that it was incumbent upon a P to prove not only that the risk was material but that if he/she had known of it they wouldn’t have had procedure Claim rejected by the HCA: Given the woman’s knowledge of the subject, her action in negligence failed because she knew of the material risks. Whether the Dr told her of the risks or not was irrelevant of her decision making process. Through Rosenburg; Berger and Bustos it appears Courts will carefully scrutinise a P’s evidence, particularly where they have alternative sources of information from their own personal experience or knowledge. How should material risks be explained?

See Kapati v Spira (NSW, Spender AJ, 6 June 1995)
A patient sued 2 medical practitioners after he had undergone a procedure to rid himself of the onset of a tremor caused by Parkinson’s disease The result of the operation was that the patient suffered a stroke, which paralysed him on one side The evidence given at trial was that the risk of stroke in these circumstances was from 0.5% – 5% probability That information (percentage risk) was conveyed to the patient, prior to the procedure The question for the court: was it appropriate for doctors to use percentage terms or should the doctors use words e.g. small risk, large risk to describe the material risk to the patient? Held: no liability in negligence

“Although the doctors were found to have adequately warned their patient of the risks of an operative procedure, Spender A J states that the use of subjective terminology, such as ‘small risk’, ‘slight risk’ and ‘rare’, do not adequately or relevantly convey the true nature of the risk and should not be used in advising patients about the risks of treatment. His Honour concluded that, where possible, the patient should be advised of the risk in percentage terms if there is a known figure, or a band or range of figures.” (Robinson and Yeldham, ‘The application of Rogers v Whitaker in courts’ (1996) 3 Journal of Law and Medicine, 222-224) Breach: the Naxakis standard

The current approach adopted by the High Court is to take a Rogers v Whitaker-style court-centred approach to diagnosis and treatment Naxakis v Western General Hospital (1999) 197 CLR 269
Boy was hit in the head with a school bag  taken to hospital and seen by Dr who released him without performing a CT scan  boy suffered traumatic brain injury and suffered brain damage. P argued that Dr was negligent in not arranging for a brain scan: Had the brain scan been carried out, the damage would have been identified and proper treatment would have been given. Dr argued: Rogers – 1 comprehensive duty of care, broken down into diagnosis, advice & treatment Advice is assessed with regards to informing the patient of material risk, but here, the relevant issue is treatment  therefore Bolum standard is applicable. HCA Held that Rogers v Whitaker should not be interpreted so literally While the court would be guided by the BolaM principle (reasonable professional) when establishing the relevant duty of care in respect of diagnosis and treatment, they were not bound to follow that standard and it was up to the court to set the standard of what was reasonable. Therefore, the law as it stands now:

There is one comprehensive duty, with three aspects:
Information & advice: use the material risk test (Rogers v Whitaker) Diagnosis & treatment – the court will determine the standard; may be guided by professional opinion, but not bound by it Civil Liability Act 2003 (Qld)

Date of operation
The CLA commenced on 2 December 2002: section 4
The Act does not operate retrospectively; it is only prospective. Thus it only applies to claims arising after the commencement date Negligence under the CLA
It is not a codification of the law of negligence – s7(5)
i.e. the CLA does not replace the entirety of the law – the unmodified common law principles continue to the extent that they are unmodified. How to bring a negligence action under the CLA
No new duties are created by the CLA: s 7
‘This Act does not create or confer any cause of civil action for the recovery of damages.’ Means CLA wont tell you if a duty of care exists or not  Therefore look to Common Law Common Law: It has been established that a doctors owes a duty of care to the patient Rogers v Whitaker; Bolam v Friern Hospital Management Committee B. BREACH

Common law, work out the standard of care required – if it’s not met, then a breach has occurred Whether a breach of duty has occurred has been codified in CLA: 3 step process (1) ‘Reasonable Foreseeability’ – In order for there to be a breach, the risk must be: Foreseeable (it is a risk of which the person knew or ought reasonably to have known) – s9(1)(a); and Not insignificant – s9(1)(b)

This is a change from the CL – under Wyong v Shirt the risk had to not be
farfetched of fanciful The ‘not insignificant’ test is harder to satisfy  higher threshold. (2) Standard of Care:
s9(1)(c) – requires that a reasonable person in the position of the person would have taken the precautions that the D failed to take. Doesn’t alter the CL position  so cases about reasonable precautions can be used when assessing risk under 9(1)(c). (3) Factors indicating a Breach:

s9(2) In deciding where a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (among other relevant things): (a) The probability of harm;

(b) The Seriousness of harm;
(c) Burden of avoiding harm; and
(d) Social utility of the harmful activity.
s9 appears to be a statutory embodiment of the ‘Calculus of negligence’ at common law found in Wyong Shire Council v Shirt. The Calculus of negligence can be seen as a mathematical equitation whereby you weigh up one side against the other to see which is more overwhelming. i.e. look at the level of each of the factors in regards to taking the precaution and take the overwhelming side. (prob harm/cost/burden is high, med or small) HOWEVER the standard of care has been codified – ss 21 and 22: s21: duty of doctor to warn of material risk;

s22 – standard of care for professionals.
Note that s 21 is Rogers v Whitaker, but s 22 effectively applies the Bolam/Naxakis standard to all professions, not just medicine Reality we now face: series of claims determined according to different laws depending on when they came to trial C. CAUSATION

At common law, the case for causation was ‘but for’ then changed in March v Stramare (1991) 171 CLR 506 to the common sense test: can use common sense for causation Section 11(1) CLA appears to reinstate the primacy of the ‘but for’ test: i.e. but for the defendant’s breach, the plaintiff would not have suffered harm However, it then allows other tests in exceptional circumstances If ‘but for’ fails (unjust result), you can then use common
sense Section 11(3)(a) and (b) CLA, which deal with the question of whether a person would have done ‘the thing’ regardless of warning. Recall Bustos, in order to prove causation the P had to prove that if they had been told of the risk of the procedure then they wouldn’t have had it. s 11(3)(b) makes ‘I wouldn’t have done it if I’d been warned’ inadmissible How then are you expected to give evidence that they would have consented even if they had known of the risks? Under s11(3)(a) CLA, you can present circumstantial evidence to the court and you can draw inferences from that evidence Prior habits or tendencies admittedly ordinarily inadmissible, may be admissible to prove causation under the CLA (Hribar v Wells (1995) 64 SASR 129) – adopted by Kirby J in Rosenberg v Percival (2001) 205 CLR 434 Section 12 CLA: Plaintiff bears the onus of proving causation D. REMOTENESS –

At common law, the case on remoteness is from The Wagon Mound (No 1) [1961] AC 388 In order to satisfy remoteness, the damage must be the type or kind of harm that was reasonably foreseeable. I.e. not the exact sequence of events, but just the type or kind of harm CLA: No longer use the term ‘remoteness’: Remoteness is now ‘scope of liability’ Section 11(4) CLA: [widens the discretion of the court]

In deciding the scope of liability, the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the party who was in breach. This appears to widen the discretion given to the courts, with far greater discretion given to determine whether the damage suffered was too remote. The use of ‘among other relevant things’ indicates that the court can take into account very wide policy factors. However it is not entirely clear what this means and there is very little case law. The better view from the commentary and cases is that the court will use the same principles under the CLA, as it did in common law remoteness i.e. in The Wagon Mound and will consider other important factors as to the responsibility of the defendant Restoration of Bolam under the CLA:

CLA has restored Bolam principle in respect of all areas of medical practice except where the allegation is made that there was a failure to advise of a
material risk.

Topic 2: Competency
Assessing competency
Competency – capacity to validly consent to what otherwise would be a battery? Status approach
Does this person fall into one of the categories of people who we say has no capacity? E.g. Minors; People with intellectual disabilities; mental illness. Traditionally, courts have said that these people need to be protected from themselves But status tests don’t take into account the individuals circumstances. This approach is not absolute: e.g. does a minor have the capacity to enter into a contract? The general rule is no: but the exception is where the contract is for necessaries Medical treatment is a question of contract, so it would be possible for a minor to consent to medical treatment if it was for necessaries Traditionally the approach that the law took – certainly in respect of children If Child cannot consent, end of discussion

Functional approach
Modern approach has been to move away from status approach towards the functional approach Capacity is determined on how well a person can function to achieve certain tasks (not status). A person’s competencies are not assessed on how they fit into a certain group, but how they undertake to tasks. Roth, Meisel & Lidz list 5 different functional approaches that can be ‘used to assess competency’: (1) Evidence of choice;

Has the patient expressed a view as to whether he or she wants the treatment? If answer is yes then patient is competent.
No judgment is made as to the advisability of the choice
(2) Reasonable outcome of choice;
A patient is competent if he/she makes a treatment decision which a reasonable person would have made. (3) Choice based on rational reasons;
If patient expresses a choice based on rational reasons – If yes, then competent. (4) The ability to understand; and
Is the patient capable of understanding information, which is equally as
complex as treatment information which is provided? (5) Actual understanding
Does the patient actually understand this treatment information? The standard that is required in Aus is, option 5: Actual understanding of the treatment. Evidence of choice – is too simplistic: we are also not really doing anything ‘Reasonable outcome of choice’ and ‘choice based on rational reasons’, may be too paternalistic and restrictive of personal autonomy Who is to be the judge of what is rational and irrational?

That leaves us with ‘the ability to understand’ and ‘actual understanding’ Understanding reflects a simple analysis that if A tells B something, B will understand it Schwartz and Roth say that courts tend to use the terms ‘understanding’ and ‘informing’ interchangeably because understanding is the natural consequence of informing Understanding

There are three versions of understanding:
(1) Understanding ‘how’;
Indicates that a person is in possession of a practical know-how /knowledge e.g. you may say I know how to ride a bike or write an essay (2) Understanding ‘that’; and
You understand what you are being told and know the truth of what is asserted. (3) Understanding ‘what’.
You can make sense of what is said, but you don’t necessarily believe it to be true e.g. the sky is falling in
The appropriate test for competency to consent to medical treatment is ‘Understanding That’ The person takes medical treatment information with which he/she has been provided, believes it to be true and applies it to his/her own situation. Application in Re C [below]

Not ‘how’ because giving consent to treatment is not a practical know how Why ‘what’ will not work: eg you go to have your sinuses cleaned and the doctor tells you that he will flush your sinuses, but you think he is government spy who is going to put a tracking device in your sinuses, so you don’t totally believe him. Patient understanding: what does a patient need to understand? Note that functional approach has eliminated the status approach In Re C (Adult: Refusal of Medical Treatment) [1994] 1 All ER 819 A 68 year old man was suffering from chronic schizophrenia Due to different condition, Dr suggested that he needed to have his left leg amputated  Man refused If competent, his refusal had to be respected, otherwise certain other options were available Thorpe J said there were three stages in assessing competency: (1) Comprehending and retaining treatment information;

(2) Believing that information;
(3) Weighing it in the balance to make a choice

In 1995the English law commission proposed a similar test.
What information does the patient need to understand to be competent? ‘Cases have established that the patient need only understand “in broad terms, the nature of any procedure proposed to be performed upon them.’ – Chatterton v Gerson Recall the 3 elements of consent:

1. Volition – person exercise a free choice
2. Information
Patient must understand, information as to the broad terms, the nature of the procedure – Chatterton v Gerson Look at Guardianship and Administration Act (Qld) and have a look at the capacity of guardians to consent – is it the same as the common law position? 3. Capacity

Courts start with fundamental assumption that adults are competent. 2 factors which impair competency: Temporary factors; and Permanent factors Temporary factors impairing competency

In Re T (Adult: Refusal of Treatment) [1993] Fam 95
A woman (T) was 34 weeks pregnant when admitted to hospital following a car accident Mother was a Jehovah’s Witness (T wasn’t, but was sympathetic to its beliefs)  T tol mother that what ever happened she didn’t want a blood transfusion even if it meant death T was incorrectly told that other forms of treatment were available to her and a blood transfusion was not necessary  She signed a form (which was not read or explained to her), saying that she didn’t want a blood transfusion. T gave birth to a stillborn child  she lapsed into unconsciousness and a blood transfusion was urgently indicated.
T’s boyfriend sought a declaration that it would not be unlawful for the hospital to administer a blood transfusion English Court of Appeal held: T had not validly refused consent because T was not given the correct information and had not turned her mind to the situation she was facing The court also expressed doubts as to her competency:

“Prima facie, every adult has the right and capacity to decide whether or not he will accept medical treatment, even if a refusal may risk permanent injury to his health, or even lead to premature death. Furthermore, it matters not whether the reasons for the refusal were rational or irrational, unknown or even non-existent. This is so notwithstanding the very strong public interest in preserving the life and health of all citizens. However, the presumption of capacity to decide, which stems from the fact that the patient is an adult, is rebuttable. An adult patient may be deprived of his capacity to decide either by long-term mental incapacity or retarded development or by temporary factors such as unconsciousness or confusion or the effects of fatigue, shock, pain or drugs.” (per Donaldson MR) In Re MB (Medical Treatment) [1997] 2 FLR 426

Butler-Sloss LJ said, “The temporary factors mentioned by Donaldson MR in Re T … may completely erode capacity but those concerned must be satisfied that such factors are operating to such a degree that the ability to decide is absent.” He went on to say: “Another such factor may be panic induced by fear. Again, careful scrutiny of the evidence is necessary because fear of an operation may be a rational reason for refusal to undergo it. Fear may also, however, paralyze the will and thus destroy the capacity to make decision.” – per Butler-Sloss LJ In this case, a woman was needle phobic  She consented to the performance of a caesarian section on her, but refused to consent to the anesthetic’s needle. Held: She was incapable of giving consent, as she was temporarily incompetent due to her fear. In Re L (1997) 2 FLR 837

A woman had a caesarian section and refused to consent to the needle Kirkwood J held, the woman’s fear of the needle prevented her from giving valid consent L’s extreme needle phobia amounted to an involuntary compulsion that
disabled L from weighing treatment information in the balance to make a choice There is a way to resolve the dilemma of consent: you wait until an emergency victim looses consciousness But then the problem is this: what if the patient expressed an opinion prior to lapsing into unconsciousness, as was seen in Sharin Qumsieh v The Guardianship and Administration Board and Lance Pilgrim [1998] VSCA 45 (Devereux 308-311), where they either express or don’t express consent, prior to falling into unconsciousness? Summary

Temporary features that impair competency to consent include: pain, the influence of drugs and certain types of phobias Ongoing (Long-Term Factors):

Lord Donaldson identified 2 factors – Mental incapacity and intellectual disability Law has rejected the status approach, therefore just because someone is mentally ill or intellectually disabled does not per se mean that they lose capacity – R v Collins; ex parte S (1998)

Tameside and Glossop Acute Services Trust v CH [1996] 1 FCR 753: The test was as outlined by Thorpe J in Re C:
“In [this case], the patient suffered from paranoid schizophrenia and was admitted to hospital under s 3 of the Mental Health Act 1983 (UK). She was found to be pregnant and incapable of consenting or refusing consent for her own treatment, on the basis that she was incapable of meeting the test in Re C.” I.e. just because you have a mental illness does not mean you are incompetent C.f. Norfolk and Norwich Health Care (NHS) Trust v W [1996] 2 FLR 613 W was admitted to hospital in an advanced state of labor, but denied that she was pregnant An obstetrician advised that a forceps delivery or a caesarian delivery be performed on the woman W was diagnosed by a psychiatrist, who was unsure if she was competent or not. Psychiatrist was undecided and unsure as to whether W could understand and retain information about he treatment because she continued to deny that she was pregnant Equally unsure whether W believed the information about the proposed treatments Thought she was unable to weigh in the balance the information that had been provided The issue for the court was: does this woman have the capacity to consent? Held: No, the court said that she was unable to weigh the considerations up and she was making the decision under great stress, meaning that she could not express valid consent R v Collins; ex parte S (1998) 6(1) Journal of Law and Medicine 129 Just because you have a mental illness, doesn’t mean you automatically can’t consent to treatment Patient (S) was suffering from a mental illness (pre-eclampsia) and was pregnant. S refused to be admitted to hospital and have a C section, but the doctors overruled her decision under s 2 Mental Health Act 1983 (UK) The Eng CA was scathing of the fact that a declaration had been made, and the use of the mental health legislation to detain someone whose views were thought to be bizarre or irrational. They approved the earlier statement of Butler-Sloss in Re MB: “Every person is presumed to have the capacity to consent to or to refuse medical treatment unless and until the presumption is rebutted. A competent woman who has the capacity to decide may for religious reasons, other reasons, for rational or irrational reasons, or for no reason at all, choose not to have medical intervention, even though the consequence may be the death or serious handicap of the child she bears, or her own death. In that event the courts do not have the jurisdiction to declare medical intervention lawful.” Competency of Children

Previously we have looked at medical interaction as contractual. What is the capacity of a child to enter into a contract?
A contract for necessities is enforceable.
If applied directly, a child could consent to medical treatment provided it was necessary. But contract law has never been good in defining what is necessary  wont get far The choice to do X also logically should mean the choice not to do X But, the ECA has said that the capacity to consent does not mean that there is automatically a capacity to not consent Look at both Australian law and English law on the matter and see where they differ Traditional approach of the law was that children could not consent at all to medical treatment Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112 The mother did not think it was appropriate for any of her daughters to take the oral contraceptive pill because of religious reasons. The English Department of Health and Social Services sent a memo to all its doctors: said that in exceptional circumstances a Dr could prescribe the contraceptive pill to a woman under the age of 16 without first getting parental consent. Mrs G heard about this memo and wrote to her
GP, seeking his assurance that he would not prescribe the pill to any of her daughters G did not receive the reassurance from the doctor that she sought Mrs G brought an action in admin law, seeking a declaration that the departmental guidelines to GPs were illegal  The case went all the way to the HL Criminal Law Question:

If English GPs followed the departmental guidelines, are they in effect aiding and abetting the commission of a criminal offence (statutory rape if under 16)? Held: NO – in those circumstances the child has already decided to have sex, all that the Dr is doing is ameliorating some of the more harmful consequences. The other ground G argued was that the children were only 16 and hence, G was responsible for the children and that if anything happened to them, G could be prosecuted Therefore, G should be able to decide whether they could be given contraceptives or not The HoL overruled the concept of there being a fixed age below which minors did not have capacity to consent: once a child reached sufficient maturity and intelligence to understand the nature and consequences of the treatment, then that consent would be valid Conflict of Setting a Relevant Test:

If we say that children in some circumstances can consent then how do we work it out? Court said there are 3 possible decision makers in respect of children (parents; child; court) HOL held: the parental right to consent to treatment gradually dwindled over time as the child matured. Lord Scarman was of the view that once a child has attained sufficient maturity and intelligence to understand fully what is proposed, then that child is competent. Until such a time as the child develops capacity the parent retains the capacity except in exceptional circumstances (emergency; parental neglect; abandonment; inability to find parent). Compare this with Lord Fraser’s view: focused particulary on contraceptive treatment and says there are 5 matters that need to be satisfied: (1) that the girl (although under 16) will understand his advice; (2) the he cannot persuade her to inform her parents or allow him to inform them; (3) that she is very likely to begin or continue having sexual intercourse with or without the contraceptive advice or treatment; (4) that unless she receives contraceptive advice or treatment her health or both are likely to suffer; and (5) that her best interests require him to give her contraceptive advice, treatment or both without parental consent. Note the criticisms of this test

QLRC discussion paper – six reasons why the test is bad law (Devereux p 213) Though the general rule of competency is understanding in broad terms the nature of the treatment, the test according to Gillick is ‘appreciating fully the nature and consequences of your treatment’ Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218 Parents seeking an order to sterilize their disabled 14yo daughter The court took the opportunity in Marion’s Case to look at the whole question of competency, as it applied to children generally and not just severely disabled children The court agreed with the English view that there were 3 parties who could give valid consent: The court; the parents; and the child (if competent).

Court held: Although a parent had the right to consent to a procedure in respect of their child, that could only be exercised if it was in the child’s best interest. Eg the court said that “sterilization requires invasive, irreversible and major surgery. But so do, for example, an appendectomy and some cosmetic surgery, both of which, in our opinion, come within the ordinary scope of a parent to consent to.” (Mason CJ, Dawson, Toohey and Gaudron JJ, Marion’s Case (Devereux 216)) The HCA explicitly adopts for Australia the principle in Gillick which it expresses as follows: ‘A minor is capable of giving informed consent, when he or she achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed’ The important distinction was that the HCA reached the conclusion on a more principled basis than the House of Lords by looking at writings on the psychology of children They said that while the law thus expressed, lacks the certainty of a fixed age, the principle does reflect experience and psychology HCA also placed certain limits on this principle:

Where there is invasive, irreversible and major surgery, court order may be required, particularly where there was: (1) Significant risk in making the wrong decision either as to the child’s present or future capacity to
consent or about what are the best interests of the child; and (2) Where the consequences of making a wrong decision were particularly grave. In these circumstances, court authorization will always be required What does the court regards as ‘invasive, irreversible and major surgery’? Cardiac surgery on an 11 year old boy: Re Michael (1994) FLC 92-486 The harvest of bone marrow cells from a healthy 10 year old boy for a transplant to the child’s aunt suffering from leukemia: Re GWW and CMW (1997) FLC 92-748 But the issue that has caused the most problem for the court has been the issue of sex change operation or hormonal treatment for minors: see Re Alex: Hormonal Treatment for Gender Identity Dysphoria [2004] Fam CA 297 (13 April 2004) (Devereux 217-264; 264-275) Look at Marion’s Case:

The limitations the HCA imposes on serious, invasive and irreversible surgery, which require the court’s approval, is the court saying that this rule only applies to incompetent children or to all children?

If a child can competently consent to treatment, does that mean that a child can validly refuse consent? According to English courts, the capacity to do something does not include the capacity to validly refuse it. In Re R (A Minor) (Wardship: Consent to Treatment) [1992] Fam 11 (UK) 15yo woman, who had been disruptive and unruly at home  taken into care of local authority. She was admitted to treatment centre and given anti-psychotic medications. She had a disturbed childhood, and suffered periods of violent and erratic behaviour. The social worker thought that in the woman’s lucid moments, she was competent. In one of her periods of lucidity and rationality she called the social worker and told him that she didn’t want to take the drugs prescribed to her. Local authority made an application to court and part of the process of that application was determining whether the woman was competent or not Lord Donaldson said: Competency to consent did not necessarily mean the competency to refuse treatment. he said consent was a lock with different key holders

the original key holders are the parents and the court
Then once the child became competent they also got the key
But just because the child decided not to use the key doesn’t mean that the
courts or parents couldn’t still use it. Interestingly, the Court of Appeal held that she wasn’t competent anyway even during her lucid moments (competency was not something that come and go – it is constant) Re W [1993] Fam 64 (UK)

16yo woman suffering anorexia  being treated at facility and didn’t want to be treated anymore. She was found by trial judge to be competent.
The court held:
(1) The court exercising its unlimited jurisdiction in respect of children, could override the interests of a decision of a competent child in the child’s best interests. (2) Moreover even if she was competent to consent, it did not include a capacity to refuse Consent is like a ‘flak jacket’ protecting doctors

What is the status of Re R and Re W in Australia?
Justice McHugh in Marion’s Case respectfully suggests that these two cases have been wrongly decided and would not be followed in Australian law McHugh J says that the competency to consent to treatment should also include the competency to refuse treatment.

Note: 2 jurisdictions, NSW and SA have legislation that deals with children and consent to treatment (see Devereux 276-303) Compare the formulation for what competency was for an adult to that of a child: Adult – Understanding broadly the nature of the treatment

Child – Understanding fully the nature and consequences
Test for children is much higher.

Competency summary
Competency is best determined by using the functional approach aspect of actual understanding, which asks the question does the patient understand this treatment information? There are 3 version of understanding: how, that and what

The correct version of defining understanding is probably understanding that
i.e. understanding the truth of what is asserted What is it that needs to be understood? It is reasonably clear that you have to understand the broad nature of the treatment Look at the factors that impair the competency, particularly in some of the English cases Instead of understanding the broad nature of the treatment, the understanding standard for children is understanding fully the nature and the consequences of the procedure/treatment Gillick has been adopted in Australia in Marion’s Case, but the other 2 cases (Re R and Re W) have been viewed negatively (see McHugh J in Marion’s Case) The HCA in Marion’s Case said that the parents can only consent only to procedures that are in the best interest of the child In addition, the HCA said that there are some procedures that are so serious that the parents cannot consent and therefore, consent of the court is needed Question: do those limitations only apply to incompetent children only or competent children as well? Finally, 3 jurisdictions that have a children competency to consent statute: SA, NSW and the UK

Topic 3: Information and Medical Practice
This topic addresses the obligations of medical practitioners in respect of confidential information and answers three main questions: In what circumstances must a doctor keep information private? When may the doctor disclose that information?

When must a doctor disclose that information?
Another question: if you’re a patient and you want to access your medical information, how do you do it and do you have an absolute right to access that information? Doctors’ notes
Why do doctors keep notes about a patient? There are two reasons (1) As a memory aid: to remember what was diagnosed and prescribed at the previous consultation – notes are a useful aide memoir for the doctor Recall Chin Keow v Government of Malaysia and Another [1967] 1 WLR 813; and what happens when a doctor does not refer to his notes or if the doctor fails to take adequate notes (2) To keep record of what was said: this helps for liability purposes Notes are discoverable in litigation – however there is still no training on how to note-take for doctors (eg in some cases, doctors have written things like FLK (funny looking kid) or ‘warning, this patient can
read upside down’) Once something is recorded in writing, it takes on much more significance Sometimes a doctor will let something slip up or will have something written down that is an uncomfortable or a sensitive matter, so that information will want to be protected The law, whilst acknowledging a doctor’s right to take notes, strictly regulates the circumstances in which the personal/private information can be used Duty of Confidentiality

There are three obligations imposed on the doctor regarding confidentiality of information Ethical obligation: a doctor has an ethical obligation to the patient to maintain their confidence Contractual obligation: there may be a contractual obligation in respect of GPs and their patients We know from Eyre v Measday and Thake v Maurice that a court will imply certain terms consistent with giving business efficacy to the contract and confidentiality is one of the implied contractual terms Equitable obligation: this obligation is derived from the principles of equity in that equity imposes a duty of confidence whenever ‘one party (‘the confider’) imparts to another (‘the confidant’) private or secret matters on the express or implied understanding that the communication is for a restricted purpose.’ That definition is given by Dalpont and Chalmers (Devereux 947-948) For a breach of confidence, equity will restrain the breaching person and will hold him or her accountable for any profits acquired by use of the information Equitable obligations in respect of confidentiality of medical information is what we will focus on Breach of confidence

The elements of breach of confidence were outlined in Coco v AN Clark (Engineers) Ltd [1969] RPC 41: (1) ‘First, the information itself … must have a necessary quality of condifence about it.’ (2)’Secondly, that information must have been imparted in circumstances importing an obligation of confidence.’ (3) ‘Thirdly, there must be an unauthorised use of that information.’ Therefore, whether a court will enforce personal confidences depends upon the nature of the communication, the relationship between confider and confidant, and prevailing notions of public policy

1. The information itself must have a necessary quality of confidence about it There is little doubt in case law that medical information is regarded
as highly confidential

2. That information must have been imparted in circumstances importing an obligation of confidence The relevant test to assess this element is an objective one; it is outlined in Mense v Milenkovich [1973] VR 784, 801 per McInerney J: “If the circumstances are such that any reasonable man standing in the shoes of the recipient of the information would have realised that upon reasonable grounds the information was being given to him in confidence, then this should suffice to impose on him the equitable obligation of confidence.” Does this apply in a doctor-patient relationship? Hunter v Mann [1974] QB 767, 772 Boreham J: a doctor ‘is under a duty not to [voluntarily] disclose, without the consent of the patient, information which he, the doctor, has gained [about the patient] in his professional capacity.’ Gurry in Breach of Confidence suggests that a health practitioner’s obligation/duty of confidence extends not only to information acquired directly from the patient, but also information acquired from other persons in the practitioner’s capacity as a health care provider A close look at Hunter v Mann reveals that the words used are that the doctor has a duty ‘not to voluntarily disclose’ the information about the patient which he/she has acquired Therefore, the nature of Boreham J’s statement in Hunter v Mann suggests 2 exceptions to the rule: Where disclosure is mandated by law; or

Where the patient gives his or her consent to the publication or information Note: equity will not only restrain the breach of the unauthorised exposure, but equity should also award damages for any consequential liability which may flow from the unauthorised exposure Furniss v Fitchett [1958] NZLR 396

This case suggests that the health care practitioner’s duty of care to his patient extends to an obligations to avoid doing his patient harm by releasing confidential information It involved divorce proceedings

The doctor (Dr Fitchett) in that case was the doctor of both the husband (Mr Furniss) and wife (Mrs Furniss) involved in the divorce proceedings Dr Fitchett formed the impression that Mrs Furniss was suffering from serious
delusions and had a mental illness Dr Fitchett was careful not to tell the wife this opinion

The doctor did however write out a certificate explaining his views about Mrs Furniss’ mental condition and gave it to Mr Furniss However, Dr Fitchett did not place the words ‘confidential’ on the certificate, nor did he place any restrictions of use on the certificate The certificate was passed in the divorce proceedings to the Mrs Furniss’ lawyers Mrs Furniss found out about the certificate, became very upset and suffered a breakdown Mrs Furniss sued the doctor for disclosing the information to her husband Held: the court had no trouble in establishing liability for consequential harm Barraclough CJ applied Lord Atkin’s ‘neighbour principle’ from Donoghue v Stevenson by concluding that ‘Dr Fitchett ought reasonably to have foreseen that the contents of his certificate were likely to come to his patient’s knowledge, and he knew that if they did, they would be likely to injure her in her health’

Note: Most states of Australia have legislative guidance reinforcing the confidentiality of the patient See in Queensland
Health Act 1937 – offence for Director-General of Health or officers administering the Act to directly or indirectly disclose or make use of information gained by them in the course of carrying out their work (penalty: fine, 10 penalty units) Health Services Act 1991 – requires employees of a Regional Health Authority or public sector health service to maintain patient confidentiality

Two instances where disclosure of confidential medical information will not result in a breach of confidence (1) Disclosure is mandated by law (two categories: disclosure mandated by law and disclosure ordered by a public health organisation) Eg subpoena, court order

Australian immigration form (which asks if you have got TB etc) Sometimes the Health Department must be notified of certain illnesses and certain public health issues (2) Patient gives consent to the publication of information

Changing doctors (when you change doctors, you allow the current health practitioner to release information to that doctor) Research
Workers’ compensation
Referral to specialist – you impliedly allow your GP to tell the specialist about your condition Mason and McCall-Smith argue that lack of consent to the publication or distribution of information may be difficult to prove when the patient does not express ‘positive’ consent to or prohibition of the release of their information The authors give the example of allied health professionals and open wards – can confidentiality truly be maintained? How are you expected to be confidential in an open ward? What about if the doctor examines you with a group of medical students/other doctors present? What about a situation where a doctor is confronted with a problem not related to medical problems, such as violent fantasies – should you divulge that information to someone? There is thus a conflict between preventing harm to others and maintaining medical confidentiality W v Egdell [1990] 1 Ch 359

W was a madman who went on a shooting spree
At his trial, he was found not guilty by reason of insanity and was sent to a psychiatric institution Eventually, W wasn’t happy about being there
W wanted to get transferred to a regional secure unit
If he had himself transferred to a regional secure unit, he could eventually have himself transferred into the community In support of his application for these various transfers, he commissioned a psychiatrist (Dr Egdell) to prepare a report about his mental state When he got the report back, W was surprised to find that the report was unfavourable to him W then withdrew his application to be transferred to a regional unit and W also refused consent to allow the psychiatrist to allow the medical report to be released to the medical officer at the secure unit hospital The psychiatrist released the report anyway

The matter ended up before the English Court of Appeal
On the one hand, a doctor owed a duty to preserve the patient’s confidence Moreover, the report was privately commissioned by the patient, so there was
a direct contractual relationship between the patient and doctor The patient had withdrawn his application to be transferred to the regional secure unit and following the withdrawal, there was no possibility of W being released into the community; hence there was no danger to the community On the other hand, if the person was a danger to the community, the community/relevant officers in the secure unit had a right to know So how do we balance the rights of the individual against the right to public safety? How does the court weigh these things up?

Held: the court said that it wasn’t a clash of two private interests, but a clash of two public interests Bingham LJ identifies the 2 public interests in the case:
(1) ‘That the law recognises an important public interest in maintaining the professional duties of confidence; but (2) That the law treats such duties not as absolute but as liable to be overridden where there is held to be a stronger public interest in disclosure’ So the key consideration in cases such as this is the trade off between preventing or protecting from harm and respecting confidentiality The court had little difficulty in establishing in the present circumstance the public interest of knowing that a person who had committed multiple killings while under the disability of a serious mental illness might be again released into the community In particular, where there was, as in this case, a psychiatrist who feared that decisions to release W were being made on the basis of inadequate information with a real risk of consequent danger to the public, the psychiatrist was entitled to take reasonable steps to communicate his concern to the responsible authorities Devereux: this last part is important

Duncan v Medical Practitioners Disciplinary Committee [1986] 1 NZLR 513 A school bus driver had a medical condition – he had a triple coronary bypass operation Because of the nature of his condition, it some may have thought that he was unfit to drive, however his treating surgeon issued a certificate that stated the driver was fit to drive The driver’s GP, Dr Duncan, cautioned the driver that he should not be driving a bus, but the plaintiff decided to drive anyway The GP made a disclosure to the police, but also a current affairs program Action was taken against Dr Duncan by a local medical registration board Question: could the doctor divulge confidential information in circumstances where he had identified a risk to members of the public? Held: whilst disclosure was permissible, it had to be reasonable disclosure to relevant authorities A current affairs show was not a relevant authority: a relevant authority would be the department of transport, the school or police etc

This area has become one of increased ‘excitement’ since the advent of HIV/AIDS X v Y [1988] 2 All ER 649
A tabloid in the UK got news of the fact that two surgeons became HIV positive from employees of a local health authority The tabloid subsequently published the information it received Question: could disclosure be justified based on the principles in W v Egdell? I.e. what were the competing considerations that the court should have considered and what should the court have seen in terms of evidence? Must tread cautiously

Key test: ask – what is the nature of the identified danger to the people? Is it a large risk or is it a low risk? I.e. do these surgeons operate? What was the risk that the surgeons would transmit HIV to other people (large or low risk)? Held: that the disclosure to the tabloid in the circumstances was inappropriate Note: the other limitation in Edgell was that disclosure had to be reasonable and to a responsible authority It was not reasonable to disclose the information to a tabloid – thus the court upheld the injunction and awarded damages to the surgeons Duty to disclose in certain situations?

If a doctor may disclose confidential information, is there a positive duty on his/her part to disclose such that he/she may be liable if he/she doesn’t? For example, if a man comes to the doctor and tells the doctor of some violent fantasies and the doctor doesn’t inform the potential victim and harm ensues, can the doctor be found liable? We can’t be sure: there are two lines of authority

Tarasoff v Regents of the University of California (Supreme Court of California, 1976) A male student at UCLA was expressing increasingly violent fantasies about killing a particular young woman Psychiatrists whom he was
seeing alerted the campus police

The campus police had limited powers, so they talked to him but released him Ultimately, the patient tracked down the student (Tatiana Tarisoff) and killed her The parents of T sued the patient and the UCLA for failing to notify of the threat to their daughter Held: the doctor could be liable for failing to inform T of the threats against her Tobriner J recognised the general rule that people are under no obligation to control another’s conduct However, there was an exception to the rule:

‘Where a doctor stands in a ‘special relationship’ either to a person whose conduct needs to be controlled or to a foreseeable victim of that conduct – a doctor has an affirmative duty for the benefit of a third party.’ That special relationship extended either to a person’s conduct that needed to be controlled, or to a foreseeable victim of that person’s conduct Tobriner J took the view that the protection of injury to confidentiality ends where public peril begins

This principle has been repeated in other US jurisdictions, however with other and conflicting results: Brady v Hopper (District Court of Colorado, 1983): a District Court in Colorado limited the psychiatrist’s duty to warn only where there was a specific, identifiable victim Lipari v Sears, Roebuck & Co (Federal District Court USA, 1980): a Federal District Court gave an expansive interpretation to the Tarasoff principle, holding that a psychotherapist has a duty to warn when he or she could ‘reasonably foresee that the risk engendered by the patient’s condition would endanger others’ This identity of the victim was irrelevant for the purpose of this duty Even Californian courts are confused:

Thompson v County of Alameda (Supreme Court, California, 1980): Californian Supreme Court put a narrower interpretation on Tarasoff and said that there had to be a ‘readily identifiable victim’ (consistent with Brady) Hedlund v Superior Court of Orange County (1983): Californian Supreme Court extended the definition of ‘readily identifiable victim’ to include family members of the victim and also bystanders that may be nearby The Australian situation

Here there is a lot of arguing by analogy
Note that generally there is no duty to rescue somebody in danger, except where there has been a special relationship: Home Office v Dorset Yacht Co Ltd [1970] 2 WLR 1140 What if there is proximity between the parties?

But the doctrine of proximity was abolished in Woolcock Street Investments Pty Ltd v CGD Pty Ltd (2004) 205 ALR 522 BT v Oei and Harvey and Ors v PD – from these cases, it could be said that Australian courts are increasingly finding that doctors are owing duties to third parties, parties which the doctors ought to have in contemplation But these cases, on the other hand, have a flow on effect for third parties in regards to the treatment This is a very difficult area – we are contrasting on one hand community safety (public interest), and on the other the confidentiality of the patient How far do we go? Do we protect doctors as well?

These are good points to argue should an exam question come up on it May be compelled by statute to divulge information: Hunter v Mann How to Access Medical Records
Breen v Williams (1996) 186 CLR 71
The case concerned Ms Breen’s (the plaintiff) breast augmentation surgery The procedure was conducted by the insertion of silicone implants The plaintiff suffered some damage as a result of the implants (not the actual surgery – it was the implants which were defective) A class action was commenced against one of the manufacturers of silicone implants In order to be joined as a member of the class action, you needed to provide your medical records to the class action plaintiffs’ lawyers (an American law firm) Ms Breen wrote to the surgeon (Dr Williams), who performed the implantation of her silicone implants She asked for her medical records

Dr Williams took advice from his insurer: he wrote back to the plaintiff and said that Ms Breen’s medical records are his records and that he would give Ms Breen a copy, provided that she would indemnify him for any negligence action that may ensue Ms Breen refused and brought an action to have her records given to her Ms Breen thus commenced proceedings against Dr Williams
to recover the medical records Had she commenced litigation for a breach of duty by Dr Williams, she could have gained access to the records via the process of discovery However, it would have been an abuse of process because she would have started an action and discontinued the action once she obtained the records Ms Breen was convinced and maintained that the records were hers Five arguments put forth by Ms Breen’s counsel:

(1) Counsel submitted that Ms Breen didn’t own the documents themselves i.e. the papers and the HCA said that this was clearly a correct concession Her counsel however argued that although she didn’t own the papers, she had a proprietary interest in the access to the documents The HCA said that this was nonsense: while ownership may be divisible, the notion that personal property that had not been abandoned but had no owner was foreign to the common law Statute or contract excepted, the medical records were owned by the practitioner (2) Was the right to access an implied term?

Interesting but bizarre notion: counsel argued that by implication of law, a doctor always contracts with the patient to act with the patient’s best interests and incidental to that obligation, the doctor must make available medical records when the patient seeks those records The HCA said that the leap from the premise to the conclusion in this argument is a long one, but that can be passed by Ultimately, The HCA rejected the notion that there was an implied contractual term to act in the patient’s best interest: the primary obligation was for the doctor to exercise reasonable care and skill and the doctor neither warrants that he will act in the best interests, nor that he will cure the patient Allowing this argument to succeed would mean that a doctor would be liable for treatment that went wrong, despite lack of negligence (3) Counsel submitted there was an innominate right of access Rejected: no innominate (without a name) access

(4) Counsel submitted that the doctor owed a fiduciary duty to the patient and part of that duty was to give the patient access to their medical records The HCA rejected this: found that the doctor-patient relationship was not an established fiduciary relationship, like lawyer-client, trustee-beneficiary There were some fiduciary duties owed by the doctor, but there was no fiduciary right of access Quoting Norberg v Wynrib (1992) 92 DLR (4th) 449 (Can SC), the HCA said that fiduciary duties should not be imposed upon common law duties to vary the nature or extent of the remedy available (5) Counsel submitted that the common law was moving towards a general right to know, exemplified in Rogers v Whitaker HCA disagreed: Wherever the common law was heading, it was not headed towards a direction that allowed an unfettered right to access to medical records HCA pointed out that if there was a change to right of access to the records, this was not a question of the common law, but a question of parliament Legislative changes post-Breen

Trans-border dealings required the government to enact a certain privacy regime if the government wanted to keep trading with bodies, such as trading with the EU The Privacy Act 1988 (Cth), amended by Privacy Amendment (Private Sector) Bill 2000 (Cth) reverses the decision of the HCA in Breen v Williams: Patients are now permitted to access their medical information, but individuals and organisations must comply with national privacy principles Principle 6 requires that access be granted to people about their own information Principle 7 requires that the holder of the information alter that information if it is incorrect In addition to the remedies under the Privacy Act, each state in Australia has freedom of information legislation, which will enable people to gain access to government documents Used to be the Freedom of Information Act, but now it is the Right to Information Act Look at the provisions in the Privacy Act (Cth): look at personal information and health information e.g. your local gym may be subject to Privacy Act requirements, video stores, electronic stores etc

Topic 4: Current Controversies
Unwanted Children: Wrongful Birth and Wrongful Life
Wrongful birth: where parents of a child is born as a result of alleged negligence on the part of a doctor bring a claim for damages as a result of the child’s birth Wrongful life: where the child born as a result of alleged negligence on the part of a doctor brings a claim for damages as a result of its birth Wrongful birth and the causation problem: CES and Cattanach

Consider the following scenario:
A woman in her early 20s complains of nausea, breast tenderness etc She sees a doctor – performs a pregnancy test, but does so negligently So the pregnancy test indicates no pregnancy where the woman was in fact pregnant She goes away thinking she is not pregnant

The symptoms don’t abate so the woman comes back to the same medical centre; another test is sent away The test comes back and clearly indicate pregnancy; but due to miscommunication, the woman is told she is not pregnant The woman goes on holiday to Queensland, feels worse and sees a doctor who tells her that she is in fact pregnant Talks to the doctor about having a termination; however the doctor tells the woman that under the law in Queensland, she is too far advanced to have the pregnancy terminated The woman gives birth to a healthy child, but she suffers mental distress and sues the original clinic for failing to correctly diagnose her pregnancy Is there an action in negligence?

Duty of care
s 7 CLA: no duties created – must look at the common law
Rogers v Whitaker – one comprehensive duty covering diagnosis, advice and treatment This is clearly diagnosis  Breach: what is the standard of diagnosis required?
s 22 CLA: the standard is that of the reasonably competent medical practitioner Here it is clearly a breach Causation/scope of liability s 11: must prove that the breach caused the harm; i.e. the argument would be that had she been correctly diagnosed as being pregnant, she would have sought a lawful termination In NSW, abortion law is that you need to prove some that some kind of physical or mental harm will ensue if the mother has the baby But the plaintiff in the case above was a perfectly healthy 20 year old woman who carried a baby successfully to term – can she prove that if she had been told of the pregnancy, she would have sought a lawful termination? These facts are from the case of CES v Superclinics (Australia) Pty Ltd (1995) 38 NSWLR 47 Back to the causation argument

Superclinics (the defendants in CES) said that the woman couldn’t prove anything, only that she lost a chance to seek an abortion – and the law will not uphold a loss chance claim (recently seen in Tabet v Gett [2010] HCA 12) This is what the trial judge determined

However, the NSWCA overturned the trial judge and made a rather stunning judgment The case also overturned Wang (as outlined in topic 1 above) The court of appeal found:
The negligence action in this case is all correct, and the problem is causation In order to be successful, the plaintiff must prove that she has been deprived of the right to seek a lawful termination The law in NSW, as it then stood, was that in order to get a lawful termination, you needed to prove that the continuation of the pregnancy posed a risk to the health of the mother, which included mental health risks The court noted that the woman bore the child to term: she was healthy and the child was healthy However the court held that a too restrictive definition had been given to the term ‘continuation of pregnancy’ Cases up until then have viewed that the term related to the 40 weeks of pregnancy However here, the NSWCA found that the definition of ‘continuation of pregnancy’ should include looking past the pregnancy and into the birth of the child The court ultimately found that the woman had suffered a serious mental disease as a result of the ‘continuation of the pregnancy’ and the birth of the child, even though that child was born healthy, and even though the mental illness was suffered after the pregnancy Thus the continuation posed a risk to her mental health, even though that risk materialised after the birth Commentators have raised two problems with this decision

How could a GP be expected to know authoritatively during the term of the pregnancy whether or not a mother would subsequently develop a psychiatric illness? How far does the timeline extend? What if the mother doesn’t develop psychiatric illness in first year/10 years after birth? What if the kid turns into a teenage dirt bag? (thanks JD)

Until CES, the law relating to negligence in relation to the birth of an
unwanted child in circumstances where what the plaintiff was complaining of was the depravation of a lawful termination focused on the health of the mother during the term of the pregnancy After CES, courts permitted the health of the mother to be considered after she had given birth to the child However the matter settled, so we don’t know what the high court thought

The issue came up for reconsideration in 2003
Cattanach v Melchior (2003) 199 ALR 131
Unfortunately for the defendant (Dr Cattanach), he lost at trial, on appeal to QCA and on appeal to HCA However, following this case, the Qld legislature changed the law Mrs Melchior was referred by her GP to Dr Cattanach, a gynaecologist/obstetrician In the course of consultation , the plaintiff explained to Dr Cattanach that she wanted a sterilisation performed The plaintiff also told the gynaecologist that she had appendectomy performed when she was 15 years sold The plaintiffs mother told the plaintiff that during the appendectomy, the operating surgeon removed M’s appendix and right fallopian tube Therefore the gynaecologist/obstetrician only sealed off the plaintiff’s left fallopian tube because she apparently had no right fallopian tube left In March 1992, the plaintiff underwent a laparoscopic tubal ligation, in which Dr Cattanach only sealed off her left fallopian tube But it turned out that M’s right tube was there and intact

The procedure was performed without negligence, and everything seemed to go well The plaintiff resumed sexual relations and four years later, she became pregnant and gave birth to a healthy child Originally, the plaintiff and her husband claimed that the surgeon hadn’t properly applied the clip (the ligation device) to the fallopian tube Therefore birth was spectacular occasion – not only were mum and dad interested, but also everyone wanted to see that the clip was still there However, after the birth, it turned out that the Filshie clip clamping the left fallopian tube had been properly applied and didn’t move, so how did the plaintiff become pregnant? The plaintiff became pregnant because her right tube was still there – however, it was bent back on itself and was obscured by scar tissue One of M’s ova had transmigrated from her left ovary into her right fallopian tube which had not actually been removed So the plaintiff was in actual fact fertile

The plaintiff and her husband sued for breach of contract and in negligence; however she could not maintain her action in contract because the defendant doctor operated on her in a public hospital in the course of his duties The particulars of negligence pleaded:

Failure to warn of the risk of pregnancy
Failure to seek the hospital records of the appendectomy performed on M in 1967 Failure to conduct a procedure on M which would have indicated the presence of the right fallopian tube (a hystereosalpingogram – an invasive and painful procedure, but one which would have indicated the presence of the offending tube) At first instance, Holmes J dismissed the last two allegations Her Honour concluded that it would not be practicable or efficacious for doctors to check medical records from many years ago or conduct hystereosalpingograms, a very painful and invasive procedure But given that the defendant was never completely sure that the right fallopian tube had been removed, he should have warned the plaintiff that the risk of her falling pregnant was 10 times greater than in a normal sterilisation procedure Holmes J was satisfied that if the plaintiff had been told this, she would have had the hystereosalpingogram and the doctor would have found the fallopian tube The trial judge awarded damages for birth and confinement and costs of raising the child until the child turned 18 On appeal to the QCA, the appeal as to the liability of the doctor was unanimously dismissed However, the appeal as to damages in terms of maintenance of the child split the court Only McMurdo P and Davies J said the costs of damages for maintenance of the child until the child turned 18 were recoverable Went on leave to the HCA but the HCA only allowed the appeal on the question of whether the damages for maintaining the child until it turned 18 were recoverable HCA dismissed the defendant’s (doctor’s) appeal 4:3

HCA determined and agreed with the courts below that damages were recoverable not only for the birth of the child, but also to maintain the child until the child turned 18 Interesting comments by the HCA, as to whether set offs were available The applicants argued that if damages were awardable to
maintain the child until it reached 18, there should be some countervailed set off for the benefits of having the child However the HCA dismissed this submission

HCA said that for example, if you are miner and you lose your leg whilst mining, when assessing damages for the fact that you can no longer work, no court would allow a set off for the fact that you can now sit at home all day and read the paper instead of going to work However, the HCA noted that most English and American courts have said that in most cases, damages aren’t recoverable for the maintenance of the child Some of the heads of damages awarded were quite liberal and included things like allowance for the cost of birthday presents each year until the child turned 18 and 2 video rentals a week for the child Two interesting questions are posed by this case:

Does it depend on who sues?
Suppose you have a husband and a child who is born as a result of the negligence of the doctor and it is the husband/father who brings the action – would this change the damages potentially awardable? If the mother sues, she is claiming damages which are ancillary to physical damages if JD drives his car and hits you, you can recover cost of hospital visit etc But what if the father makes a claim? He is only making a claim for pure economic loss for raising the child i.e. costs that are not ancillary to damage So if the action for wrongful birth is brought by the father, does a whole different set of rules apply, due to the fact that the father is making a claim for pure economic loss? The distinction was mentioned at one point by the QCA, but was not at all examined by the HCA – so it would be up for discussion, should a relevant case arise

Think about causation through this situation
A rents premises to B and C; C leaves and assigns her lease to B; C falls in love with someone in England and leaves The law recognises a duty to mitigate – a party cannot sit on a loss, they must actively do something to mitigate the loss So instead of suing at the end of the period, could re-let the premises Even if there is a drop in the market, a plaintiff can obtain the difference between what they would have got had the defendant not breached the contract and what they have managed to let the premises for If you don’t mitigate, you won’t get the full amount of damages Can this be applied to wrongful birth?

If the HCA Cattanach says the value of the loss for the birth of a child are the costs of confinement (giving birth) plus the cost of maintaining the child until it turns 18, what would one way be of mitigating the loss? Two possibilities:

Adopt the child out; or
Seek an abortion
But the courts do not like this – cannot expect a mother to give a child away So, in terms of wrongful birth – there is no duty to mitigate loss (you’ll get the full value of your damage) Another question in relation to Cattanach: the court held that damages are recoverable only until the child turns 18 Should the test at common law be more flexible?

Why don’t we look past 18 years, as most children live with their parents well into their 20s? Why didn’t the HCA didn’t set off reasonable Centrelink allowances for what was awarded in Cattanach v Melchior? This issue was not at all raised by the HCA

Civil Liability Act 2003 (Qld), s 49A
In response to Cattanach, the Queensland parliament enacted ss 49A and 49B of the CLA:

The effect of these two was to reverse the effect of Cattanach They prohibit the recovery of any economic loss as a result of the birth of the child which is the result of a failed sterilisation procedure (49A) or contraceptive procedure/advice (49B) This means that child-raising costs are not recoverable in Queensland However, the question remains open as to whether or not damages for pain and suffering as a result of childbirth are recoverable, or prenatal medical expenses The language of the legislation only rules out costs associated with rearing or maintaining a child

But ‘rearing’ could be interpreted broadly to include the prenatal stage JD – what is the effect of the following two circumstances where negligence has occurred and a healthy child is born, what is the extent of damages that may be recovered? according to the section, a court can’t award damages for the economic loss suffered out of the cost associated with maintaining a child I would think that this would mean a mother could still get damages for the emotional or physical damage flowing from the negligence of the doctor where negligence has occurred, and a disabled child is born, what is the extent of damage which may now be recovered? I would think that here the words ‘ordinarily associated’ are particularly relevant. Children are not ordinarily disabled when they are born. Accordingly, the economic loss associated with rearing and maintaining a child with a disability is not ‘ordinarily associated’. Dmages may be made for that economic loss suffered purely because of the disability. No damages could be granted for loss which resulted from ordinarily incurred costs – eg food, shelter – the type of costs the parent would have to pay regardless of whether the child was disabled or not

Limitation of actions and wrongful life
In Queensland, the statute of limitations is the Limitation of Actions Act 1974 (Qld) The Act sets a time period within which a party may bring an action – after this, the action is ‘statute-barred’ It does not mean the cause of action ceases to exist; however, you can be prevented from suing upon it A defendant can waive reliance if it so chooses

Why would a defendant waive reliance when it is a perfectly good defence? To protect a reputation – certain large statutory authorities don’t want to hide behind a technical defence, and they see themselves as having higher duties If your rights are waived, what can happen?

Can be sued and found liable
In application to wrongful birth cases: if these cases are pleaded as a matter of negligence, what is the time period in which a person can sue after the breach happens? 3 years from when the cause of action accrues

Eg a woman gives birth on 1 January – she has 3 years to sue But this may prove problematic as she may become busy and preoccupied But when does the breach occur?
At the time of failing to give advice of a material risk (could be ages ago); or when the child is born? Damage is the gist of negligence (eg Barnett v Chelsea) – therefore the cause of action arises when the damage has arisen The safer option is that the cause of action arises at the birth of the child(according to JD and the courts): therefore a mother has three years from the date of birth As a consequence, the number of wrongful birth cases has been very small A parent who is busy may also be ignorant of the legal rights – so this is often a problem in wrongful birth cases How about wrongful life cases?

The Act applies to children – a child has 3 years to sue from the date that they gain full capacity as an adult So that’s the regular 3-year period which runs from when they gain full capacity (i.e. 18) In this case, the court can get a much more accurate concept of what damage was actually suffered Could be open to abuse – negligence remedies are about putting the victim in the position they would have been in had they not suffered the damage So wrongful life a more attractive option

However, to satisfy causation, in a wrongful life claim the child would have to give evidence on his/her own behalf (or through the parents) saying they would rather not have been in existence, so damages must be paid for the child existing The HCA has said this is all too difficult – we don’t know what not existing is like, so we can’t compare non-existence to existence: thus a claim for wrongful life will not be allowed Harriton v Stephens (2006) 226 CLR 52

The plaintiff was a young lady called Alexia Harriton; according to Callinan J, she was born “profoundly, incurably and tragically disabled” Her disabilities resulted from her exposure to rubella (German measles) whilst in her mother’s womb In August 1980, Dr Max Stephens (a GP) was called to the home of Olga Harriton (Alexia’s mother) Mrs Harriton told the doctor she had been suffering from a fever and a rash, and she was concerned that this
might be symptomatic of rubella She told the doctor she was concerned about this, because she thought she might be pregnant Dr Max Stephens recommended that she undergo a blood test – both to determine her pregnancy and if she had rubella Mrs H took the blood test

On 22/8/1980, Mrs Harriton contacted Dr Paul Stephens (also GP), who was in practice with his father He advised path results came back; he indicated Mrs Harriton was pregnant but was not suffering from rubella It was common ground between the parties that Dr Paul Stephens was negligent in diagnosis and advice: a prudent and reasonable medical practitioner would have recommended a second type of blood test that would have confirmed rubella Upon the diagnosis of rubella, the practitioner would have informed a pregnant woman of the high risk that her child would be born severely disabled, and that an abortion was the only way to prevent this from occurring The parties agreed that Mrs Harriton would have sought such an abortion, and that the abortion would have been lawful in those circumstances So Alexia sued for wrongful life (as it is now known)

Held: as a matter of law, one cannot sue for a claim of wrongful life Leading judgment: Crennan J
Because the law cannot possibly calculate damages because it cannot compare non-existence to existence, then the law must also say that no duty of care has been breached Academic commentary on the case has been mixed

Verity Doyle wrote a piece in the QLSR (2009) Vol 2, in which she says that, with respect, Crennan J has conflated the concepts of damage and the concept of duty of care – this is incorrect Another interesting view is in Gray’s article – 2006 SydLR Vol 6: points out the logical errors and the legal fictions, with respect, in Harriton Two distinct argument have been advanced as to why damages for non-existence cannot be assessed (1) involved the assertion that the law values each person’s life equally (sanctity of life principle): a plaintiff cannot argue that non-existence would be preferable to his or her life with disabilities American case (Bermann): because we all suffer from some ailments or defects, whether major or minor, courts must refuse to say that any individual’s life is so burdensome as to be less preferable that non-existence (2) – found favour with HC: because non-existence by definition cannot be experienced, a court can logically make no comparison of an existence versus non-existence Whatever the merits in terms of the application of the law and principles of negligence, now 100% clear after Harriton that there can be no action at common law in Australia for wrongful life Constitutional Limitations on the Delivery of Healthcare Services General introduction

Basis of the Australian Constitution
It is obviously written, which is an Act of the UK parliament (at Westminster) Purpose:
(1) establishes a federal parliament of two houses (house of representatives and senate) (2) the federal parliament is given certain powers and responsibilities in s 51 The ‘federal entity’ came together as an agreement by the colonies (which were transferred into states) How does it work?

Enumerated powers of the federal parliament, everything else left to the states – the states have the majority of powers When a valid federal law conflicts with a valid state law, the federal law trumps the state law to the extent of the inconsistency What was the effect of the Uniform Tax Case in 1942?

During wartime conditions, federal government took over the income tax powers exclusively State government could probably still introduce an income tax Although state governments have majority of powers, federal government has majority of the money And money can buy influence! – this is fiscal imbalance

So the constitution tries to recognise this imbalance in areas regarded as of national priority Health and medical issues
Tension: no constitutional power that enables the federal government to control health or medicine So look at the constitutional provisions which have tangential effect Article by Karen Wheelwright – limitations The Commonwealth has in passing legislation s 51(ix): deals with the quarantine power

s 51(xiv): insurance
s 51(xxiii): invalid and old age pensions
As at federation, only three powers that could be used for health purposes The Commonwealth attempted, in 1943, to introduce a pharmaceutical benefits scheme Members of the public would be entitled to a free allocation of certain medicines which were outlined in a formulary Also imposed duties on medical practitioners and pharmacists who provided the medicines In passing the Act, the Commonwealth purported to rely upon s 81 of the constitution Allows the Commonwealth parliament to make appropriations “for the purposes of the Commonwealth” The Commonwealth said that the phrase “for the purposes of the Commonwealth” should be whatever the Commonwealth decides from time to time as terribly important Victoria opposed the legislation: argument – the purposes of the Commonwealth meant those powers given to the Commonwealth by s 51 Matter came before HC in ‘Pharmaceutical Benefits case’ (1945) 71 CLR 237 If the Commonwealth’s argument was correct, then s 51 has no meaning: why set out particular powers if the Commonwealth can determine what it wants to do? This was the position of the HC

The phrase ‘anything the Commonwealth desires’ undermines the constitutional foundation of the Constitution In upholding Victoria’s argument, the court distinguished our constitution from that of the US US gives Congress the power to make legislation for the welfare of the people of the US Dixon J: the PBSA merges a statute which must be held completely invalid on the simple ground that it is not valid with any power given to the Commonwealth Starke J: ‘purposes of The Commonwealth’ could include not only express grants of powers under s 51, but also such matters arising from the existence of the Commonwealth and its status as a federal government, such as payment for members of parliament So the scheme failed

If the constitution doesn’t do what you want it to do, you can amend it by referendum s 128: the parliament put a referendum to the Australian people (need a majority of people and a majority of states) Inserted s 51(xxiiiA): gave Commonwealth the following powers Maternity allowances;

Widows’ pensions;

Child endowment;
Unemployment benefits;
Pharmaceutical benefits;
Sickness and hospital benefits;
Medical and dental services (but not so as to authorise any form of civil conscription); Benefits to students; and
Family allowances
The words in brackets ‘but not so as to authorise any form of civil conscription ‘ would come back to haunt the Commonwealth Armed with new s 51(xxiiiA), the Commonwealth again tried to introduce a PBS: PBSA 1947-9 Drafted in terms very similar to the PBSA of 1944, but in addition to free medicines, could also get free appliances (artificial appendages etc) Also different was the addition was s 7A: said that a medical practitioner could not provide medicines or appliances that were specified in the Act, except by using a form that was specified by the Commonwealth If the form was not used, the Commonwealth would ‘find you’ UKMA in Australia were then the relevant professional body, challenged the legality of the Act on the basis that forcing Drs to use a particular type of form amounted to civil conscription, and thus impinged the words in brackets Federal Council of British Medical Association in Australia v The Commonwealth (1949) 79 CLR 201 So if you force someone to use a particular form, does it amount to civil conscription? If the Cth successfully passed an act, which nationalised the health system i.e. we’re getting rid of the private health service, in favour of a national system, where doctors are paid a salary – this would be civil conscription The words in the Constitution were any form of civil conscription A person who is compulsorily enrolled in military is subject to civil conscription The HCA determined that where the scheme of the Act required a medical practitioner to do something for the Cth, then this did amount to a form of civil conscription If the contrary was adopted, the Commonwealth could require the practitioners to do anything Williams J:

‘This submission, if accepted, would mean that medical practitioners could be compelled in the course of their practice to perform all sorts of medical duties as, for instance, to give certificates, keep records, and give information, confidential or otherwise, about the health of their patients
provided the certificates, etc were reasonably incidental to the execution of a law with respect to the provision of any of the allowances or benefits specified in the paragraph. In my opinion, such a submission unduly narrows the effect of the wide words ‘any form of’ in the expression in parenthesis …’ The scheme was struck down again

GP Society of Australia v The Commonwealth (1980) 145 CLR 532 Involved certain provisions of Health Insurance Act 1973 (Cth) The relevant sections of the Act placed conditions on the entitlement of a medical practitioner to claim benefits in respect of pathology services Held: the provisions, notwithstanding the earlier litigation, where valid and did not amount to civil conscription The term civil conscription referred to any sort of compulsion to engage in practice or to perform certain duties However, in the Act there was no compulsion to claim pathology services – only said that if a doctor wanted to, they would have to fill out a number of forms to claim the benefits Gibbs J found nothing in the plain meaning of the words of the Constitution to give a wider interpretation than that which he had found Alexandra Private Geriatric Hospital v The Commonwealth (1987) 162 CLR 271 Involved a piece of legislation purporting to regulate the conduct of nursing homes in Australia

How does the Commonwealth legislate with respect to health?
s 51(xxiiiA) is important – but note also s 51(xxxix): allows the Commonwealth to legislate on matters ancillary to areas of federal legislative competence Most important: the grants power – allows The Commonwealth to make grants to states on such terms and under such conditions as it sees fit In effect, this is how the Medicare scheme works – The Commonwealth grants money to states to assist in the running of hospitals and health facilities; in return, it requires some things The nature of Medicare agreements vary from government to government – previous requirements included setting up health complaints commissions, or for the states to organise case mixes Recently the govt was looking at taking over federal control and operation of certain state facilities almost in their entireties But govt has backed away slightly

So The Commonwealth has enormous influence on health policy nationally What sort of things does the state regulate?
Until recently, registration, admission and removal from practice of health practitioners; but this has gone to the federal government Formation of AHPRA
States own the vast majority of public hospitals, even if they are funded to a substantial degree by the federal government Bioethics
Bioethics is the philosophy of healthcare interactions – it purports to answer the difficult questions quite often where the law runs out of answers A number of different formulations of the competing bioethical principles; one of the most common: four competing principles Autonomy (or more precisely, respect for autonomy);

So by understanding each of these bioethical principles, many of the difficult questions in medical law can be answered There is a difficulty here however: some of the principles come into conflict, and so the practical effect is that the law would separate when the principles are in harmony from when they are in conflict When they are in conflict, the law should tell you which one should prevail Eg: if respect for autonomy means respect for personal choice; beneficence was desire of Dr to cure them When in harmony: complain of sore throat/cough/broken ribs; Dr diagnoses bronchitis and gives you antibiotics – you want to feel better, and Dr wants to make you better When not in harmony: eg Jehovah’s Witness/blood transfusion; or where Dr says lose weight or you’ll die, but person says I like my life like this How would the law determine how to resolve this problem?

Key concept: competency
If competent, autonomy wins over beneficence; if not competent, generally speaking beneficence can rule over autonomy This is grossly oversimplified, but this is the general concept Autonomy
The classic work on autonomy is by 2 Americans called Beauchamp and Childress They look at the term autonomy and conclude that the term may refer to a
person himself, person’s will or a person’s actions in society But there are 2 classical versions as to what amounts to autonomy: Those advanced by John Stuart Mill and Immanuel Kant Those 2 versions of autonomy are important for two reasons

They not only define what autonomy is, but why people should respect other people’s autonomy Immanuel Kant
They key concept advanced Kant was to look at a person in terms of a person’s will Kant said that to ‘will’ something was to decide on a particular course of action Such a decision would be morally good only if the underlying reason for action was not only to act in accordance with a duty but for the sake of duty He notes that clearly, an action to bring about a certain state of affairs may have been done for a certain duty but then it may not have been Although everything in nature acts in accordance with laws, only rational beings such as humans have the ability to act in accordance with principles or maxims Accordingly he said that beings who are capable of adopting maxims can be moral or immoral A maxim is said to be moral only if it accords with a moral law a person’s actions are said to be moral if and only if that person willed that his maxim should become a universal law: this is known as the categorical imperative He postulates that rational nature exists as an end in itself Since man possesses a rational nature, he is thus an end in itself It follows that there is a law to the effect that a person should act in a way that he treats every man as ends to himself and not as a means to some other end This principle was said to be binding on every rational will What does all this mean?

The essence of Kant’s view of autonomy is clearly the freedom of the will: the property of the will has a being of law itself Kant says that to be autonomous is to govern oneself, including making one’s own moral choices in accordance with principle In summary, autonomy of the will is important to Kant, and he stresses the importance of individuals as an ends to themselves rather than a means to someone else end John Stuart Mill

Mill was not concerned with autonomy per se: his concern was rather the right to liberty Restrictions upon a person’s liberty or a freedom of action were
to be tolerated only where the limitations were used to prevent one person’s freedom impinging upon another’s Consistent with Mill’s utilitarian vent, it was considered that allowing every person to pursue their own goals would maximise the benefits for all Mill says that “conformity to established patterns reduces individual productivity and creativity that, if developed, could benefit society” Furthermore:

‘“Autonomy may thus be thought of as freedom of action or will. The concept of autonomy is only worthwhile to the extent that people respect one another’s autonomy. In some respects, this respect flows implicitly from the idea that there are separate persons. Thus, to acknowledge another is to acknowledge the possibility of other centre of choice and intention.” If an individual is perceived as a self-governing moral agent, it follows as a matter of logic that no interference with physical integrity may be tolerated without permission.’ This is autonomy: allowing every person to exercise free choice as to what he or she wants to happen Beneficence

This is regarded as a moral duty, which requires doctors to act so as to produce the best medical result for the patient It has been said that the idea of beneficence is the raison d’être of the medical profession A medical practitioner is trained to treat to attempt to cure the patient Brian Bromberger of the UNSW says that the trend for beneficence has now gone so far that it is claimed that the medical practitioner no longer administers to the sick but rather he treats the sickness There are 3 classical versions of what beneficence means

Hippocrates (The starting point for beneficence)
He formulated a series of principles for medical practitioners, which was designed to characterise those practitioners as a group of committed men set apart from and above others in society In his book Epidemics, he comes up with the classic statement of beneficence: As to disease, beneficence means 2 things

To help; and
To do no harm

His model of beneficence builds its account of the moral responsibilities of the physician in terms of the moral ends of medicine Dr John Gregory
Gregory was professor of surgery at the University of Edinburgh He defines medicine as the art of preserving health, of prolonging life and of curing diseases He tied the idea of working for the best interest of the patient in with specific virtues by using Hume’s concept of ‘sympathy’ David Hume had argued that moral judgments do not ultimately rest on reason but rather on sympathy – he says: ‘Were I present at any of the more terrible operations of surgery, the heating of the instruments, the laying of the bandages in order, the heating of the irons, with all the signs of anxiety and concern in the patient and assistants would have a great effect upon my mind and excite the strongest sentiments of pity and terror.’ Gregory held that this sympathy manifested itself through virtues, such as telling the patient the truth and maintaining the patient’s confidence Beauchamp and McCulloch – a modern formulation

They draw upon the classical definitions and maintain that beneficence is essentially ‘a list of goods to be striven for and harms to be avoided’ Non-maleficence (‘do no harm’)
Non-maleficence means ‘do no harm’ (Devereux 3): this essentially entails avoiding injuring the patient Justice
The bioethical principle of ‘justice’ has important implications when looking at questions of allocation of scarce resources, but these considerations are beyond the scope of this course We said that often autonomy and beneficence work side by side: The patient wants a cure and the doctor tries to help the patient, thereby and respecting the patient’s autonomy When the two bioethics come into conflict, competency determines whether autonomy or beneficence prevails R v Dudley and Stephens [1884] 14 QBD 273 DC

Survivors of a shipwreck drew straws and ate the loser
We take it that it was murder, because there was an intention of causing death or grievous bodily harm (GBH) Recall Patel: He was liable for manslaughter, because he did not intend to cause the deaths of his patients The accused men in this case raised the defence of necessity i.e. that it was necessary to kill and consume one of their party because had they not done so, they themselves would have died The law says that the defence of necessity will operate if there is an extreme threat and you react to that threat So it is clear from this case that you cannot use the defence of necessity to justify the killing of another R v HM Coroner for East Kent; Ex parte Spooner (Herald of Free Enterprise/Zeebrugge Ferry Disaster) (1987) 88 Cr App Rep 10 This case concerned a ferry, which sank in the English Channel The ferry had doors, through which cars could drive onto the ferry; during the voyage, the doors opened and some cars fell off – the craft took on water and began to sink People scrambled overboard: Getting overboard involved throwing a rope ladder overboard and climbing down A person got half way down the ladder and froze: If this person didn’t move out of the way, other people would drown The accused decided to kick the frozen person out of the way, however in doing so, the accused killed that person Practically in such a case, do you kick the person out of the way because you are worried about yourself and the others on board, or do you think about the defence of necessity? It is really not as easy as it seems Conjoined Twins

Preliminary issues
In Re A (Children), the parents of conjoined twins were faced with a dilemma: the twins, Jodie and Mary, were conjoined in that they shared some each other’s vital organs If the twins are left conjoined, they will both die as 1 twin is not strong enough to sustain the other If however the twins are separated, vital organs would be allocated to 1 twin, thereby allowing that twin to survive, but causing the other to die Can you justify killing someone in order to save someone else’s life? No Does R v Dudley and Stephens apply in this case? If so, is there some way we can get around the rule laid down in that case regarding necessity? We know from the tutorial on Patel, that the QCC establishes some duty provisions: One of the first duties is to provide necessaries In R v MacDonald & MacDonald [1904] St R Qd 151, it was held that necessaries included food, hydration and medical treatment What if you just leave the children to die: Would you be liable for manslaughter? Probably yes Is there a distinction at CL between causing someone’s death and letting someone die? In what circumstances can doctors separate conjoined twins and can you use the defence of necessity when one
twin will die as a result of the separation? Does the doctrine of double effect apply?

Recall the illustration of the doctrine of double effect in R v Adams [1957] Crim LR 365: The morphine example, where if you give someone more and more morphine to relieve a patient’s pain, the patient will eventually die due to repression of the breathing reflex The doctrine is this: If the doctor says that the primary purpose of the treatment which caused death was the provision of pain relief, the secondary effect i.e. the death of the patient will not matter The principle operates at CL, but does it apply to the QCC to allow the separation of conjoined twins? Does double effect apply? Can we say that saving the life of one twin is better than killing the other when they will both die if left untreated? The law often struggles to keep up with technological advances The ability to separate conjoined twins is something that has developed since the 1950s The lessons learned from these cases can be used to inform our judgment in the future So when going through these cases, we must bear in mind the changes and challenges in medicine Case law

In re A (2000) 4 All ER 961
The 2 children in that case were Gracie and Rosie Attard
They were identified in the court proceedings by the pseudonyms ‘Jodie’ and ‘Mary’ They were born in August 2000 – when they were born, they were fused at the pelvis and the lower portion of their abdomens They shared only one organ – the bladder

However, they also shared an aorta and an inferior vena cava If a separation operation were carried out, Mary would not survive the separation surgery There was also evidence before the court that Mary would have died shortly after birth, had she not been conjoined to Jodie M’s heart was said to be abnormal and incapable of pumping blood around her body M survived only because she received oxygenated blood which was pumped by J’s heart M also had no functioning lung tissue: she would not have been able to have been resuscitated after birth, had she been born separated The was no evidence that M had ever breathed on her own

There was also evidence before the court that M had neurological problems However, the extent of the neurological problems were unclear: M was not considered brain dead or as being in a permanent coma or a vegetative state What was the attitude of the parents?

The parents were devoutly religious and they didn’t want the twins separated, even if one twins could be saved The parents said that it was God’s will if both of the twins were to die There were 2 pragmatic concerns for the parents:

The parents lived on an island, where there were limited medical facilities, so travelling for treatment was not good; Leaving the twins in England for treatment did not appeal either The hospital in which the twins were born sought a declaration that it would both be lawful and in the children’s best interests for the children to be separated At first instance, Johnson J granted the declaration

The parents then appealed to the ECA and all 3 judges rejected the appeal What is interesting is that the judges rejected the parents’ appeal on different grounds Three issues:
Was the killing of Mary murder?
Under English law there has to be a ‘reasonable creature in being’ before there could be an unlawful killing What is a reasonable creature in being?
Brooke LJ: The ‘reasonable’ relates to appearance, rather than to metal capacity and excluded what his Lordship said were ‘monstrous births’ as well as ‘strange and deformed births’ Also accepted a submission that the criminal law’s protection should be as wide as possible He said that the conclusion that a creature in being was not ‘reasonable’ would only be confined to the most extreme cases: The case at hand was not such a case Ward LJ: Made it clear than notions expressed in earlier times that Siamese twins were monstrous was offensive and repugnant to contemporary medical knowledge Robert Walker LJ: Expressions such as ‘monster’ were redolent of superstitious horror and no longer have a place in legal or medical textbooks He said that ‘such disparagingly emotive language should never
have been used to describe a human being’ however disabled and dysmorphic’ Having concluded that the twins were not outside the criminal law, their Lordships thus had to discuss whether there would be a killing All three judges were satisfied that M and J were independent beings born alive The judges go into a test as to when a child is born alive

In particular, the court said that M’s dependence on her sister for survival could not displace the view that she was alive and separate Was the surgery lawful?
All 3 judges found that the surgery would be lawful, although their reasoning is different Although M’s death would be a certain consequence surgery, Ward LJ said that this would be murder: Brooke LJ agreed Were there any excuses or justifications to murder?

Brooke LJ and Ward LJ held that the doctrine of double effect did not apply Robert Walker LJ said that double effect could amount to an excuse in the circumstances Ward LJ: found that the defence of necessity or duress did not apply However, his Honour said that a quasi-version of self-defence, modified to meet the exceptional circumstances would make the surgery justified Could see no difference between self-defence and the doctors going to J’s defence and removing the treat of fatal harm by Mary According to his Lordship, the doctors were coming to J’s aid to remove the threat of the conjoined twin His Honour that if the operation did not proceed, J would die within 3-6 months because her heart would not be able to supply blood to both her and M His honour also noted the dilemmas posed by the conflict of duties and could not resolve them other than to choose the lesser of 2 evils: He weighs up a number of different factors What tipped the scales for Ward LJ in favour of Jodie was that J faced the prospect of living a relatively normal life and that M would die anyway Brooke LJ: took a different tack: his Honour’s solution was to extend the doctrine of necessity to the facts before him His Lordship distinguished R v Dudley and Stephens on the basis that the victim in that case was not destined for death His Lordship reformulated the doctrine of necessity and said that it should consist of 3 elements: The act is needed to avoid inevitable and irreparable evil;

No more should be done than is reasonably necessary to achieve the purpose; and The evil inflicted must not be disproportionate to the evil avoided His Lordship rejected that this concept represented a move downward on a slippery slope Robert Walker LJ was also prepared to extend the doctrine of necessity to encompass the separation of the twins So the surgery went ahead: Mary died and Jdoie survived

Latest news indicates that J is a happy and healthy girl
State of Queensland v Nolan [2002] 1 Qd R 454
The twins born joined in Nolan were craniopagus twins, i.e. twins joined at the head The 2 girls concerned were Alyssa and Bethany Nolan born on 3 May 2001 Although they had separate brains, they shared cranial drainage veins Bethany had no kidneys or bladder and waste was removed from B’s blood stream by A’s one kidney On 25 May 2001, B went into heart failure: she developed a severe pulmonary oedema, i.e. build up of fluid around the heart At that stage, Bethany’s death appeared imminent

If Bethany died and was still attached to her sister, Alyssa would have died within hours The parents of the twins gave permission for the children to be separated They were aware that the surgery would be fatal for Bethany and there was a 60-80% chance that Alyssa would also die At 11pm on 25 May, the State of Qld applied to the QSC for an order permitting an operation for the separation of the twins The court was asked to determine whether the surgery, which would ultimately lead to B’s death, would be lawful The surgery was scheduled for 06:30 am the next morning, so the judge on duty, Chesterman J had to work through the night to make a judgment Chesterman J grappled with the same issues the ECA did in Re A – two main issues here (1) Were there 2 separate persons capable of being killed?

Chesterman J found that there were 2 separate lives in being – to his Honour, this appeared clear because of s292 QCC

(2) Was the surgery lawful?
Chesterman decided that the surgery to separate the twins would be lawful
because it would be an attempt to save Alyssa’s life His Honour noted that under the Criminal Code (Qld), s 291, it is unlawful to kill any person unless that killing is authorised, justified or excused His Honour referred to the decision in Re A, but said that that decision was of limited assistance because 2 members of that court relied on the doctrine of necessity, which was a CL doctrine and had limited application under the QCC He concluded that the doctrine of necessity could not be used to justify the operation in Qld His Honour then turned to the conflict of duties that had been identified by Ward LJ in Re A and said that there is a parallel under the QCC Criminal Code (Qld), s 286 establishes a duty for persons who care for children, which was directly relevant He said that the obligation under s286 QCC would in some circumstances extend to an operation to save A’s life, which would effectively kill B His Honour said that ‘[t]he operation which is compelled by law is a justification for the act which has that result. The killing is therefore not unlawful.’ ([22]) His Honour also relied on the Criminal Code (Qld), s 282 (providing an operation in good faith/with reasonable care defence): that section supported the conclusion that the operation to save A’s life was a reasonable operation The decision Chesterman J had to make was a difficult: It was one made under pressure of time and difficult circumstances The decision is well reasoned

However there is a possible problem: There is a clear section of the QCC that states that a person who accelerates the death of another is deemed to have killed that person So His Honour’s conclusion on s 282 and s 286 is good, but with respect, he doesn’t get around s 296 Commentary on Nolan

Colleen Davis, an academic at Griffith University, has raised some questions about these cases: Suppose the conjoined twins were not children but adults: What would happen? There are recognised cases of conjoined twins going into adulthood before being offered a change to be separated An example of this is the case of the Biddenden Maids, who were twins joined at the head, who survived into adulthood When these twins were offered a chance to be separated, they said that as they came into the world together, they would like to leave the world together There was also a case of conjoined twins, who in their late 40s wanted to be separated Davis makes the point that what
if one or both twins decide they want to be separated, but doing so will result in the death of one of them? We know that under CL and the QCC, a person cannot consent to their own death What is the situation where one of the adult twins refuses consent? Davis points out there is a live issue, as to whether decisions of judges could apply in those circumstances where separation of adult twins would result in the death of one of them Note: s 286 only applies to children and not adults

s 288 imposes a duty on people who carry out surgery to use reasonable skill and care: Davis makes the point that operations causing the death of a patient do not meet the standard of ‘reasonable skill and care’ under s286 QCC Recall Patel: The Patel case was about the decision to embark on the surgery, and not to the surgery itself: So after Patel, it is clear that s 288 QCC applies not only to the conduct of the surgery, but also the decision to embark upon the surgery in the first place With respect, the correct decision has been made in terms of an outcome, but the legal reasoning is difficult to apply and to follow What if the percentage of survival was changed? If one child died and the other lived, what if it is more equally weighed? How would that change the outcome? Other modern challenges

A modern example of medical treatment with which the law struggles with is ‘telemedicine’ UQ is a world leader in telemedicine
Telemedicine allows a person in a remote location to have a consultation with a doctor in the city or overseas, wherever there is a secure internet connection Telemedicine is great thing, but it causes legal problems

For example: A doctor is sitting in his office in New York, giving advice to a patient in Brisbane: Is that doctor required to be admitted in Brisbane?
Is he performing the service in NYC or Brisbane?
If the results of the examination are transmitted properly and the results come through blurred/incorrect, does the carrier have any liability? If one of the bases of our medical law regulations is based upon the theory of battery and we take out the element human touching/contact that realm because the treatment/diagnosis is give/made over the internet, how can we adjust the law of battery?

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