While discussions with patients about the benefits, risks and range of treatments have become imperative due to many changes in healthcare consumerism and patients’ expectations, the principal driver of change has been the Australian High Court case of Rogers v Whitaker.
The key point in the 1992 judgment was: “A doctor has a duty to warn a patient of a material risk inherent in a 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.”
The High Court said that the “amount of information or advice which a careful and responsible doctor would disclose depended upon a complex of factors:
• the nature of the matter to be disclosed;
• the nature of the treatment;
• the desire of the patient for information;
• the temperament and health of the patient;
• the general surrounding circumstances.”
The High Court also noted that there are two tests when considering the need to inform a patient:
1. whether a reasonable person in the patient’s position would be likely to attach significance to the risk, and
2. whether the medical practitioner is, or should be reasonably, aware that the patient would be likely to attach significance to that risk.
As a consequence of the High Court’s judgment, it is the doctor’s responsibility to provide the patient with adequate and understandable information so that the patient can make an informed decision about whether or not to undergo treatment.
The circumstances of Rogers v Whitaker were singular and interesting. A surgeon appealed to the High Court over an award against him by a patient who had suffered a devastating complication that had a risk of 1 in 14,000 cases. The patient was convincing in her claim that she would not have had the procedure had she known of the risk. The patient was successful on one claim of negligence, which was a “failure to warn”. The High Court dismissed the surgeon’s appeal.
Click here to read the case of Rogers v Whitaker and the similar case of Chappel v Hart, and related commentary (by Dr Paul Nisselle).
Or to retrieve the case on the High Court website, go to:
To assist the informed consent process prior to the diagnostic or surgical procedure, the use of a patient education pamphlet can be helpful. After the patient has had the opportunity to carefully read the pamphlet, a follow-up consultation may be important, depending on the patient, the patient’s general health and circumstances of the case. This follow-up can be valuable to ascertain the patient’s understanding and whether the patient has uncertainties that need to be discussed. In some cases, a third visit may be warranted.
While this process of assisting the patient to better understand the proposed treatment and related matters may take extra time, hopefully it will avoid problems and complaints if a complication does occur.
Mi-tec Medical Publishing provides a wide range of patient education pamphlets, both as hard copy and online, for 19 colleges, societies and associations in Australia and New Zealand. All patient education has been reviewed by experts and specialists in their field.
"Your patient information brochures are essential to my practice as there have been times when I had to rely on them for legal reasons.”
Australian surgeon, 31 January 2023