Bioewa News VoL/.? NoJ 46

It is up to us to develop those arguments and to present our legislators with aproposal for change which will respect the moral autonomy of patients and doctors,while at the same time protecting the vulnerable from abuse . If the public needs to beeducated in the matter, then it is up to us to do it.

NOTES1. The Age, 15 May 1992.2. Helga Kuhse, Peter Singer, 'Doctors' practices and attitudes regarding voluntary euthanasia ',

Medical J Aust, 148,623.3. The operation of the Act is described by Professor David Lanham in 'The right to choose to die

with dignity', (1990) 14 Criminal Law Review 14, 400 at pp.424-430.4. Law Reform Commission Victoria, Working Paper No.8, Murder: mental element and punishment,

May 1984, p.24.5. CR Williams, Criminal Law, Buuerworths, 1984, p.3.6. See section 3, Crimes Act for sentencing discretion.7. Law Reform Commission, Op cit, p. 27.8. Jd P 28.9. Bioethics News, 1992, pl0,l1,4.10. J. Keown, 'The law and practice of euthanasia in the Netherlands', lOB Law QuarterlyRev, 51,56.11. P Admiraal, 'Is there a place for euthanasia?' Bloethics News, pl0,18.12. Keown, Op cit p.58.13. /bid .14. Id p.64.15. Id p.65.16. Ibid.17. Id p.69.

Doctors' duty to inform patients

LOANESKENE

Senior Lecturer, LawSchool. The University of Melbourne

In November last year, the High Court in Rogers v Whitaker! upheld the awardof more than $800,000 damages against an ophthalmic surgeon who operated on apatient who became almost blind after eye surgery. The Court said that, although thesurgeon had performed the operation competently, he had been negligent in nottelling the patient that there was a slight risk (assessed at 1 in 14,000) that when heoperated on her right eye, she might lose her sight in the left eye if she developed arare condition called sympathetic ophthalmia.

The patient, Ms Whitaker, was 47 when she consulted the surgeon and hadbeen blind in her right eye since childhood after it was penetrated by a stick. Thesurgeon, Mr Rogers, told her that he could operate to improve the vision in her righteye and could also improve the appearance of the eye by removing scar tissue.

Ms Whitaker was a nervous, anxious woman who asked many questions aboutthe proposed operation. She "incessantly" questioned the surgeon about possiblecomplications. In the words of the High Court:

She was to the ... [surgeon's] knowledge, keenly interested in theoutcome of the suggested procedure, including the danger of un-

Bioethics News Vol J2 No.3 47

intended or accidental interference with her "good" left eye. On theday before the operation, ... [she] asked the ... [surgeon] whethersomething could be put over her good eye to ensure that nothinghappened to it; an entry was made in the hospital notes to the effectthat she was apprehensive that the wrong eye would be operated on.Ms Whitaker did not ask, however, whether it was possible that the operation

on her right eye might itself affect the other eye. There was, in fact, a risk (accepted atthe hearing as 1 in 14,000) that this might occur by the development of the rarecondition of sympathetic ophthalmia. Mr Rogers said that he did not mention this riskto Ms Whitaker because it did not occur to him that he should.

Ms Whitaker agreed to the operation and it was performed with due care andskill. Unfortunately, however, it was not successful. The vision in her right eye was notimproved and she developed sympathetic ophthalmia in her left eye, as a result ofwhich she became almost totally blind. She sued Mr Rogers, alleging that he had beennegligent in failing to warn her of the risk, admittedly remote, that she might becomeblind after the operation. There was no suggestion that the operation was performednegligently. The sole issue was whether the risk of sympathetic ophthalmia was a"material" risk and so must be mentioned to the patient before she agreed to thesurgery.

Some medical witnesses testified at the hearing that it was their practice tomention the risk of blindness without specific inquiries from the patient. However,there was also evidence of a body of opinion in the medical profession at the time thatthe risk of sympathetic ophthalmia should be mentioned only if a patient specificallyasked if surgery on one eye could affect the other eye. On that basis, Mr Rogers askedthe Court to apply the Bolam principle and to find that he was not negligent in acting"in accordance with a practice accepted as proper by a responsible body of medicalopinion even though other doctors adopt a different practice".'

The High Court rejected this argument. It said that:While evidence of acceptable medical practice is a useful guide for thecourts, it is for the courts [and not the medical profession] toadjudicate on what is the appropriate standard of care after givingweight to "the paramount consideration that a person is entitled tomake his own decisions about his life."The Court then explained why the Bolam principle is less readily applicable in

cases of alleged negligence in information-giving than in negligence in diagnosis andtreatment. Medical practitioners do not have a separate duty to take care in each ofthese aspects of their practice, the Court said . They have a "single comprehensive dutyto take reasonable care and skill in the provision of professional advice andtreatment". But:

In diagnosis and treatment, the patient'S contribution is limited to thenarration of symptoms and relevant history; the medical practitionerprovides diagnosis and treatment according to his level of skill ... [andwhether he has acted] in accordance with the appropriate standard ofcare is a question in the resolution of which responsible professionalopinion will have an influential, often a decisive, role to play.[In information-giving, on the other hand] the [patient's) choice [onwhether to agree to a certain procedure) calls for a decision by the

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patient on information known to the medical practitioner but not tothe patient, ... [Therefore] it would be illogical to hold that theamount of information to be provided by the medical practitioner canbe determined from the perspective of the practitioner alone or, forthat matter, of the medical profession.In order to decide whether a medical practitioner has exercised the

appropriate standard of care in communicating relevant information to a patient, theCourt must consider whether the information was given "in terms that are reasonablyadequate for that purpose having regard to the patient'S apprehended capacity tounderstand that information". And a risk must be mentioned if it is "materia!", that is:

if, in the circumstances of the particular case, a reasonable person inthe patient's position; if warned of the risk, would be likely to attachsignificance to it or if the medical practitioner is or should reasonablybe aware that the particular patient, if warned of the risk, would belikely to attach significance to it.This is an "objective/subjective" test which requires a doctor to take account of

the patient's circumstances that are known or should be evident to the doctor. TheCourt found, applying this test, that the risk of sympathetic ophthalmia, although only1 in 14,000, would have been "material" for Ms Whitaker. She was already blind in oneeye so the risk of loss of vision in the other eye was particularly devastating. She wasan exceptionally anxious patient, asking numerous questions that indicated concernabout her good eye. The surgery was "elective" - despite her early misfortune, she hadlived a "substantially normal life: completing her schooling, entering the workforce,marrying and raising a family". For all of these reasons, the Court was persuaded thatthe risk of blindness, although so remote, was one to which this patient would haveattached significance and that the surgeon was therefore negligent in not mentioning itto her.

. It may be noted that the issue of causation was not pursued by the surgeon inthe High Court appeal. This meant that the Court did not need to consider whether itwas satisfied that Ms Whitaker would not have agreed to undertake the surgery if shehad been informed of the remote risk of blindness , so that the surgeon's failure to

warn "caused" her injury. This avoided consideration of whether the test for causationis objective or SUbjective. Before the High Court decision, Australian courts havetended to apply an objective test to determine materiality of risk (Would the risk havebeen significant for an ordinary person?) and a subjective test to determine causation(Would this patient have agreed to the surgery if informed of the risk?) . In NorthAmerica, the converse has occurred.

Now, as explained earlier, the High Court has extended the test of materialityto include risks which the doctor "is or should reasonably be aware that the particularpatient, if warned of the risk, would be likely to attach significance to". It will beinteresting to see in future cases whether, having adopted a more SUbjective approachto materiality, .Australian courts will continue to take a subjective approach tocausation as well.

NOTES1.2.

19 Nov. 1992, Fe 92/045; (1992) AI/st Tons Reports 81-189.Bolam v Priem Hospital Management Committee [1957]1 WLR 582.