|The culprit (7 News, Australia)|
We have come a long way in some countries in seeking to ensure patients know all the risks associated with treatment but this is still poorly developed in other countries, and wherever it is done, some healthcare workers do it better than others. The landmark Rogers and Whitaker case in Australia set the gold standard for ‘informed decision making’, still referred to as ‘informed consent’ in many places.
Arlene Macdonald comments that this case distinguishes between, on the one hand, the belief ‘that a medical practitioner is not negligent if he acts in accordance with a practice accepted at the time as proper by his peers, even though other medical practitioners adopt a different practice. In other words, the standard of care owed to a patient in all things is determined by medical judgement’ and, on the other hand, in the words of five of the six Judges in this case, there is a duty ‘to warn a patient of a material risk inherent in the proposed treatment; 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’.
Had Paul that fateful morning asked me whether it was safe to swim and had I not mentioned the storm, the overcast conditions, the bait fish, the whale calves and the wetsuit I would have considered myself to be negligent….but the R and W judgement tells me I might have mentioned all those things and still been negligent had I not explored with him particular questions about the swim that had meaning specifically for him, for instance do these risks take on even greater significance for him because he has a young family to support; and that he would be swimming alone.
But I want to raise a question about this for your consideration. I have written before in my BLOG about a paralysis in the delivery of healthcare due to over prescribing, over ordering of tests and over informing of patients – medicine has become too ‘defensive’, too risk averse. Acting as agent provocateur I asked …. ‘Maybe there should be an agreed ‘likelihood percentage’ below which Docs are indemnified against not prescribing/ordering and against not mentioning possible complications (risks) in the course of providing ‘informed consent’.
The incidence of hospital acquired infection is around 6% to 10% in developed countries and docs will tell you when you go for surgery that it is a risk with a likelihood of about 10% (to be on the safe side). That is fair enough even though the surgeons I have worked with tell me no patient has decided not to go for surgery because of the risk of contracting an infection. So, could 10% be the threshold above which docs should warn of the risks, order the tests, prescribe the medication and below which they can’t be sued if the risk materialises?
The likelihood of sympathetic ophthalmia is 1 in 14,000, which is well below my suggested indemnification threshold, so in my scenario Dr Rogers would have been indemnified against legal action by Maree Whitaker, a case Mrs Whitaker won. So to go the way I have suggested will result in potentially successful actions being ruled out – in other words, there would be a price to pay.
Atul Gawande has had some interesting things to say recently about what the job of healthcare professionals is and what it is not:
The current healthcare ‘system(s)’ has an enormous number of virtues but it is fundamentally broken and broke. I say the SYSTEM is broken and broke – not those who populate it who are people for whom I have and have always had enormous respect and admiration. It is these people who can make it right if given the freedom to do so.
BUT, enough of all that! It’s soon to be the Festive Season so to my reader (is there still just one of you?)
All the very best for this special time of year.
Chief Executive Officer
Bioethics Research Notes 5(3): September 1993 ROGERS V WHITAKER: DUTY OF DISCLOSURE By Arlene Macdonald
Being Mortal: Medicine and What Matters in the End. Hardcover – Deckle Edge, October 7, 2014 by Atul Gawande
Sara Nelson Amazon Editorial Review of Being Mortal.