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Courts in Australia and England have begun applying a tougher standard to the information that doctors should give their patients-that of what a reasonable patient might expect rather than of what a reasonable body of doctors might think. Loane Skene and Richard Smallwood outline some recent cases in Australia and argue that doctors have not yet caught up with this change in judges' thinking and are thus laying themselves open to negligence claims
The information that doctors are legally required to give patients before they investigate or treat them has been debated for over a decade. Until recently English courts have generally adopted the standard of accepted medical practice. This is based on the "Bolam test" of negligence-that practitioners are not negligent if they act in accordance with practice accepted by a responsible body of medical opinion. 1 However, recent judgments in both English and Australian courts suggest that judges are moving away from accepting what "reasonable doctors" might do to supporting what "reasonable patients" might expect. This tougher (for doctors) standard requires that doctors understand their obligations. But, despite judges setting out their criteria and specific guidance, experience in Australia suggests that doctors haven't yet caught up with this change in judges' thinking. There are probably lessons here for Britain, and other countries with similar legal systems.
Summary points
In the past decade both English and Australian courts have adopted a more patient centred standard in deciding what risks doctors must disclose to patients
Professional bodies have issued guidelines to help doctors inform their patients
Yet in Australia many doctors still do not understand their legal duties and many are being held liable for their failure to inform
An empirical study of doctors' understanding and practices might be useful in the United Kingdom
Changing case law
Recent English case law suggests that the Bolam test is being modified so that a court can reject medical opinion if it is not "reasonable or responsible." 2 For example, in Smith v Tunbridge Wells Health Authority it was "neither reasonable nor responsible" for a surgeon not to mention the risk of impotence from rectal surgery, even if some doctors do not mention that risk. 3 And in Pearce v United Bristol Healthcare NHS Trust the court...