Perioperative medicine training resources: U2M16: Legal and ethical considerations for informed consent

Abstract
KIE: The High Court of Australia affirmed the Supreme Court of New South Wales' determination that a doctor has a duty to warn a patient of any material risk involved in a proposed treatment. A risk is considered material if a reasonable person in similar circumstances would attach significance to the risk, or if the doctor is, or should be, cognizant that the particular patient would express concern about the risk. The trial court overruled the precept that a doctor could not be found negligent in warning a patient if the doctor acted within the purview of common practice, even though other practitioners may follow different procedures and regardless of the particular patient's concerns. In this case, Maree Whitaker became essentially blind after an unsucessful operation on her right eye caused sympathetic ophthalmia in her left eye. Although there was no question that the surgery had been performed with the requisite skill and care, Ms. Whitaker petitioned the court for relief due to the failure of the ophthalmologist, Dr. Christopher Rogers, to warn her of the possibility (approximately 1 in 14,000) that the sympathetic ophthalmia condition could develop. The trial court's award of damages was affirmed because, in spite of Ms. Whitaker's expressed specific concern that her "good eye" not be harmed, Dr. Rogers did not inform her of the potential risks associated with the surgery.

Abstract
David Studdert and colleagues identified disputes over informed consent among malpractice claims and serious health care complaints in Australia and provide an analysis of disagreements between patients and doctors over whether particular clinical risks should have been disclosed before treatment.

Abstract
In a medical emergency, the usual requirement to obtain consent before giving treatment does not apply. This exception to the general rule on consent to medical treatment is known as the 'emergency principle'. By considering a case scenario, and by adjusting the facts to this scenario, we explain the circumstances in which the emergency principle will protect practitioners from an action in trespass. Although the fundamentals of this principle are uncontroversial, there are a number of uncertainties and inconsistencies in this law in relation to certain parameters. For example, whether a practitioner would ever be obliged to seek consent from a substitute decision-maker before providing emergency treatment is not clearly or consistently explained. We suggest the law should be clarified.

Abstract
Objective: To describe the frequency, characteristics, and outcomes of medicolegal disputes over informed consent.

Design and setting: Retrospective review and analysis of negligence claims against doctors insured by Avant Mutual Group Limited and complaints lodged with the Office of the Health Services Commissioner of Victoria that alleged failures in the informed consent process and were adjudicated between 1 January 2002 and 31 December 2008.

Main outcome measures: Case frequency (by medical specialty), type of allegation, type of treatment.

Results: A total of 481 cases alleged deficiencies in the informed consent process (218 of 1898 conciliated complaints [11.5%]; 263 of 7846 negligence claims [3.4%]). 57% of these cases were against surgeons. Plastic surgeons experienced dispute rates that were more than twice those of any other specialty or subspecialty group. 92% of cases (442/481) involved surgical procedures and 16% (77/481) involved cosmetic procedures. The primary allegation in 71% of cases was that the clinician failed to mention or properly explain risks of complications. Five treatment types - procedures on reproductive organs (12% of cases), procedures on facial features excluding eyes (12%), prescription medications (8%), eye surgery (7%) and breast surgery (7%) - accounted for 46% of all cases.

Conclusions: The typical dispute over informed consent involves an operation, often cosmetic, and allegations that a particular complication was not properly disclosed. With Australian courts now looking to patient preferences in setting legal standards of care for risk disclosure, medicolegal disputes provide valuable insights for targeting both quality improvement efforts and risk management activities.

_Obtaining informed consent is an important responsibility of all doctors and is a major component of their day-to-day practice. However, little is known regarding practising doctors' understanding of consent in relation to medical law.Aims_ To gain insights into current doctors' understanding of the legal requisites that underpin the consent of patients to medical procedures in Australia.Methods_ A cross-sectional survey of Western Australian medical practitioners was conducted. A 15-question online questionnaire (SurveyMonkey, USA) was developed and distributed to Western Australia medical practitioners via social media, hospital-based Junior doctor society pages and through the email accounts of practitioners registered with MDA National - a large medical defence organisation. Doctors were questioned on their understanding of medicolegal responsibilities, informed consent practice and knowledge of a historically significant Australian medicolegal case (Rogers v Whitaker, 1992).Results_ A total of 172 responses was received during the survey period. The respondents came from various levels of seniority and from a variety of subspecialist areas. The survey demonstrated that among the respondents, the understanding of their medicolegal responsibilities around the issues of informed consent was deficient. Only 31% of respondents were aware that it is a court of law that defines the reasonable standard of care in relation to obtaining informed consent. Less than half of the respondents (48%) were aware of the High Court of Australia's definition by which the standard of reasonable care is defined.Conclusion_ The results from our survey suggest that there is a requirement to enhance the education of medical practitioners to meet the medicolegal requirements and optimise consent_