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Guidelines and Policies

Consent to Medical Treatment – Patient Information NSW
NSW Health
Requirements for the provision of information to patients and obtaining consent to medical treatment.

General Guidelines for Medical Practitioners on Providing Information to Patients Cth
NHMRC
Types of information doctors must discuss with patients when deciding on treatment –information patient’s should be given, informing patients of risks, and circumstances when it can be withheld. Reflects the doctor’s duty at common law.

Good Medical Practice: A code of conduct for Doctors in Australia All
Australian Medical Council
Sets out the principles that characterise good medical practice and makes explicit the standards of ethical and professional conduct expected of doctors by their professional peers and the community.

Legislation

Civil Liability Act 2002 NSW
Standard of care outlined under s5O – accepted medical practice. However this standard does not apply in relation to providing information to the patient.

Health Practitioner Regulation National Law Act 2009 NSW
The creation of the National Registration Scheme in Australia and the functioning of this scheme in NSW. Outlines requirements of professional conduct under Part 8 and matters that will constitute unsatisfactory professional conduct or professional misconduct.

Cases

Breen v Williams (1996) 186 CLR 71 Cth
A doctor’s duty is to take reasonable care and skill in treating her patient.

Chappel v Hart (1998) 195 CLR 232 Cth
Doctors must provide information on risks even if the procedure is clinically necessary. Case of vocal chord nerve damage after necessary oesophageal surgery.

Gett v Tabet [2010] HCA 12 Cth
High Court rejected the principle of ‘loss of chance’.

Rogers v Whitaker (1992) 175 CLR 479 Cth
Outlines doctor’s duty to provide information about material risks of a procedure to a patient. Failure to do so can result in a claim in negligence. Rejects the Bolam principle, the court is the final arbiter, not the medical profession.

Rosenberg v Percival (2001) 205 CLR 434 Cth
Comments on the outcomes of the Rogers v Whitaker case.

Simon v Hunter and New England Area Health Service [2012] NSWDC 19 NSW
A mentally-ill patient was released to the custody of his friend who said he would drive him home. During the trip the patient killed the friend. Family members of the victim sued the health service for negligently releasing the patient. The judge found there was no duty of care to the family members as the risk of the patient killing the victim was not significant, probable or reasonable foreseeable, as required by the Civil Liability Act 2002 (NSW), s 5B.

Varipatis v Almario [2013] NSWCA 76 NSW
Case concerned a morbidly obese patient with terminal liver cancer who alleged that his GP had breached his duty of care by failing to refer him for bariatric surgery. The Court of Appeal found that a general practitioner’s duty of care does not require an exercise in ‘futility’ where the patient declines treatment or referral.

A v Peters [2011] VSC 478 VIC
A representative action was brought by women who were infected with hepatitis C by an anaesthetist during termination procedures at a Melbourne clinic. The doctor was addicted to fentanyl and would give himself a dose and then reuse the needle on the patients. Fifty-five women were infected. The doctor was charged and pleaded guilty to 55 counts of negligently endangering life.

BT v Oei [1999] NSWSC 1082 NSW
Where a doctor, who had negligently failed to diagnose HIV infection in his patient, was found liable to the patient’s sexual partner for her subsequent HIV infection.

Papers, Reports and Books

Medical Negligence – the Duty to Attend Emergencies and the Standard of Care: Lown & Anor v Woods & Anors
(1996) 18(3) Sydney Law Review 386
Author: Day, Kylie
Article examines the common law duty of doctors to attend an emergency and the case of Lown v Woods.

Law and Medical Practice: Rights, Duties, Claims and Defences (3rd Ed)
Author: Loane Skene
Handbook and education resource for both medical and legal professionals on law as it relates to medical practice.

Lost – Loss of Chance
(practical implications of Tabet v Gett)
Sara Bird
Australian Family Physician
39(9) 2010

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