The Duty of Medical Practitioners, and CAM/TCM Practitioners, to Inform Competent Adult Patients about Alternatives
Information disclosure has a distinctive profile. It is distinct from diagnosis and treatment. There is a tendency that “disclosure” of treatment options is confused with “recommendation” and “adoption” of treatment. There is a need to place the issue of “disclosure of alternatives” in a clear and wider context. The balanced, unbiased, and contextualised “disclosure” of alternative treatment options should be distinguished from the genuine, honest “selection” of treatment, and the personalised “recommendation” of treatment. While health practitioners have latitude and liberty in “selecting” and “recommending” treatment between different “schools” of thought, they should overcome their preferences, transcend the boundaries of “schools”, and present patients with balanced information about divergent “schools” of thought, when the context shifts to information disclosure. An “integrated” approach to disclosure of alternatives, where all practitioners provide patients with contextualised information about divergent schools of thought, is better than a “fragmented” approach, where every practitioner presents patients with information only about his “school” of thought, leaving patients to search for information about other “schools” of thought themselves. The threshold for a treatment option falling within a practitioner’s duty to inform may be lower than that required to satisfy the Bolam test or the “two schools of thought” doctrine. The scope of disclosure depends on the circumstances of each case. The facts that (1) the evidence base of an emerging procedure is becoming more established, and the procedure is favoured by another school of professional opinion; (2) the procedure is available from other practitioners or in other institutions; (3) the procedure has fallen within a practitioner’s knowledge; (4) having regard to the patient’s physical conditions, the practitioner acknowledges that the patient is a candidate for the procedure; and (5) there are indications that the patient desires to know about the procedure, and therefore the information about the procedure is material to the patient’s decision-making, may all point towards a positive duty for the practitioner to provide information about the alternative procedure, even though the procedure is emerging and non-conventional, and the practitioner does not favour and recommend it. In addition to emerging treatment options, financially or geographically unavailable treatment options, alternative providers, and the choices between conventional medicine and CAM therapies may fall within a duty to inform. That reflects the patient-oriented nature of information disclosure. The current law reinforcing convention and orthodoxy needs to be adjusted. However, in a tort context, the considerations of causation and damage dilute the significance of the rationale underlying the doctrine of informed consent. That problem is particularly critical in the context of disclosure of alternatives. The jurisdictions I examined and compared (England, Canada, Australia, New Zealand, China and Japan) differ in the extent to which they recognise a legal duty to inform about alternatives, and in the ways they approach the issue of information disclosure. New Zealand offers the most encompassing range of alternatives that may fall within the duty to disclose. That needs to be read against New Zealand’s unique Code of Patients’ Rights. Compared to the approaches of either heavily relying on tort law or relying exclusively on professional regulation, the New Zealand’s Code approach has the merit of combining the authority, stability, and proactive character of legislation, with the flexible and embracing nature of professional regulation, at the same time avoiding the inconveniences of medical negligence lawsuits. Acknowledgement and promotion of a more encompassing and contextualised information disclosure is matched by a convenient, dynamic and low-level resolution mechanism, rather than by a time-consuming, fraught-with-hurdles and overburdened tort system.
Advisor: Henaghan, Mark; Skegg, Peter
Degree Name: Doctor of Philosophy
Degree Discipline: Faculty of Law
Publisher: University of Otago
Keywords: The duty to inform; Alternatives; Medical practitioners; CAM/TCM practitioners
Research Type: Thesis