CONSENT

A person who is 16 years or more and who is of sound mind has a right to make decisions which affect his or her life and welfare, and to decide what risks he or she is willing to take in receiving medical treatment.

Before a person can properly exercise this right and decide to either consent to or refuse particular medical treatment, he or she needs to have a reasonable understanding of what that treatment involves. As that information can only come from the treating health professional, it is part of their duty to provide a proper explanation of the medical treatment and the risks involved.

The Consent to Medical Treatment and Palliative Care Act 1995 s 15 states that doctors have a duty to explain to patients, so far as may be practicable and reasonable in the circumstances:

the nature, consequences and risks of proposed medical treatment
the likely consequences of not undertaking the treatment
any alternative treatment or courses of action that might reasonably be considered in the circumstances of the case.

The High Court of Australia in Rogers v Whittaker (1992) 67 ALJR 47 has said that a health professional has a duty to warn a patient of a material risk inherent in proposed treatment. A risk is material if in 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
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 the risk.

The High Court also agreed with the reasons expressed in an earlier South Australian case F v R (1983) 33 SASR 189, that the amount of information to be provided to the patient depends on the circumstances.

Some circumstances affecting the amount of information to be provided include:

the nature of the medical treatment
what will happen if the treatment fails or goes wrong
how likely it is that a failure or particular risk may occur
the seriousness of the effect on the patient's health or life if a particular risk occurs
whether the patient appears to want a full explanation of what is involved, or on the other hand, prefers to leave the decisions to the doctors rather than discuss unpleasant or worrying details
the nature and availability of alternative treatment
the general health of the patient
the personality or temperament of the patient
whether the treatment is needed because of an emergency (such as a car accident).

The law recognises that a health professional is justified in withholding information if there are reasonable grounds for believing that the physical or mental health of the patient might be seriously harmed by knowing particular information, or that the patient's temperament or emotional state is such that the patient would be unable to make a rational decision based on that information. It is also recognised that some people simply wish to leave decisions about their medical treatment in the hands of their health professional and that it would be an unnecessary and additional burden on such patients to force health professionals to discuss all details of treatment with them.

Insufficient or wrong information does not amount to negligence unless it can be shown that correct information would have resulted in a different decision about undergoing the treatment.

Rogers v Whittaker

In Rogers v Whittaker the patient was already blind in one eye and underwent elective surgery to improve that eye's appearance and to attempt to restore sight to that eye. Unfortunately, the operation was not a success. Not only was the patient's sight not returned to the eye operated on but a condition developed that resulted in loss of sight in the other eye. The doctor knew that the patient was very concerned about anything happening to her good eye but did not warn her of a 1 in 14 000 chance that she could go blind. The court did not say that in every case a doctor would have to warn a patient of this very small chance of blindness, but because the doctor knew of the patient's concerns the court decided he should have warned her. The patient's claim only succeeded because the court believed that if warned she would not have had the operation.