The Law Handbook 2024

870 Section 9: Health, wills and other legal issues affecting older people The High Court of Australia said in Rogers v Whitaker [1992] HCA 58 that a doctor must warn a patient of risks that are ‘material’, and that a risk is material if: in the circumstances of the particular case, a reasonable [that is, an ‘ordinary’] 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. This approach was not altered in relation to information-giving by the Victorian 2003 tort law reforms (see Chapter 10.1: Negligence and injury). Essentially, this means a patient should be warned of risks that are likely to be significant to them. This depends on: • the person’s condition; • the nature of the treatment (more information may be needed for a ‘cosmetic’ procedure than for surgery that is clinically indicated for the patient’s health or wellbeing); • the seriousness or likelihood of the risk (serious risks like death, stroke or paralysis should be mentioned even if they are remote; similarly, minor injuries like bruising after venepuncture (entry into a vein) may be material if they are frequent); • the patient’s desire for information (questioning, anxious patients may need to be given more information); and • the general surrounding circumstances (less information may be justified for life-threatening or urgent procedures than for those that can be delayed). The test is whether the risk in question is so serious, or so likely to occur, that it is likely to influence the decision of an ordinary person in the person’s position whether to agree to the procedure; or whether the health professional knows, or should know, that the risk would be significant for the particular individual. Ultimately, this depends on the circumstances of a particular case. While there is no ready guide, there have been many cases alleging negligence against health professionals for failing to disclose a material risk. In any event, practitioners should always try to respond truthfully and adequately to a patient’s questions. Therefore, as a patient, it is advisable to question health professionals thoroughly, to resolve any doubts about the consequences of a treatment or procedure. In Rogers v Whitaker [1992] HCA 58, the High Court explained that a failure to warn of material risks did not render consent invalid. Rather, the failure may found an action in negligence if the patient is able to establish that they would not have undergone the procedure had they been warned of the relevant material risks. When may less information be given? There are several cases in which less information may be justifiable. The first case is an emergency. Here, treatment may be given without any information, if it is necessary to protect the person’s life or health. The second case is a health professional’s limited discretion (therapeutic privilege) not to disclose information where they have reasonable grounds to believe that disclosing the informationmay harm the person (e.g. if the individual is suicidal or mentally ill). Even in this case, however, a health professional may not be justified in withholding information if a patient asks a specific question. A third case may exist where the person waives the right to be given information. There are some suggestions in older cases that a doctor should not be required to burden a patient with unwanted information about risks; however, the scope of this exception has not been significantly explored in subsequent cases. Further, it should be noted that a patient may not have sufficient understanding of the possible risks to make a meaningful decision to refuse to hear information about them. Even if this is an exception to the requirement to disclose material risks, the individual must still be given sufficient information about the procedure to give an effective consent to it. Treatment for mental illness, including electroconvulsive therapy and neurosurgery Special principles apply to decisions about treatment for mental illness as a patient of a designated mental health service. Still more principles apply to treatment involving electroconvulsive therapy and neurosurgery. For further information, see Chapter 8.4: Mental illness.