Education And Debate

Informed consent: lessons from Australia

BMJ 2002; 324 doi: http://dx.doi.org/10.1136/bmj.324.7328.39 (Published 05 January 2002) Cite this as: BMJ 2002;324:39
  1. Loane Skene, professor of law (l.skene@unimelb.edu.au)a,
  2. Richard Smallwood, Commonwealth chief medical officer (Richard.Smallwood@health.gov.au)b
  1. a Faculty of Law, University of Melbourne, Parkville, Victoria 3010, Australia
  2. b Department of Health and Aged Care, Alexander Building, Furzer Street, Woden, ACT 2606, Australia
  1. Correspondence to: Professor Skene

    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 …

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