Medico-legal issues and informed consent

What are the 4 components that constitutes negligence?

1. duty of care

2. breach of duty of care

3. causation

4. harm

What is duty of care?

• once you assess a pateint a duty of care is established

• public and private practice, studnet placements and telehealth

What is breach of duty of care?

• a breach of duty of care - a clinician fails to meet the required standard of care

• what a reasonable, similarly trained practitioner would have done - judged in Australia by a peer professional opinion

What is causaiton?

• breach of duty of care must be casually linked to injury

• ‘but for test’ but for the clinician breach would the harm have occured

• most difficult element for plaintiff to prove in health care

What is harm?

there must be injury

• physical injury

• psychological injury - nervous shock

• financial loss

• near misses or dissatisfaction alone are not enough - needs to be measurable harm

What is Boalm Principle?

a professional is not negligent if their conduct is supported by a responsible body of competent professional opinionn, even if other professionals would have acted differently

In other words:

If a respectable group of practitioners would have done the same thing, and the practice is considered logically defensible, then the practitioner is not negligent, even if the outcome was poor

What is the modern refinement: the bolitho add-on?

Courts still consider professional opinion, but they also independently assess whether that opinion is reasonable and defensible, and they apply statutory tests for peer professional opinion

What is different with bolitho and bolam principle?

• must be widely accepted - not just a body (to avoid minority groups)

• must be same progression, field of practice and same level of expertise

• court can reject if illogical, unreasonable, not defensible

What should we do as physios?

• explain material risks (even rare risks must be disclosed if the consequences are serious)

• tailor warning to the patient

• document the discussion (ahpra case studies show that poor documentation often leads to regulatory action)

• obtain informed consent (consent must be voluntary, informed, and documented)

What is informed cosent?

informed decisionmaking is the two-way communication process between a pateint and one or more health practitioners that is central to patient-centred health care

It reflects the ethical principle that a apteint has teh right to decide what is appropriate for them, taking into account their personal circumstances, beliefs and priorities

This includes the right to accept or to decline the offer of certain healht care and to change that decision. In order for a pateint to exercise this right to decide, they reqquire the information that is relevant to them

Whats gaining consent?

the patient is advised in simple terms of:

• the diagnosis

• recommended ehalth care, including the expected benefits, common side effects and alternative health care options

• the material risks including compl,ications associated with:

  • the recommeded health care

  • alternative health care options

  • a decision not to recieve the health care offered

  • any significant long term physical, emotional, mental, social, sexdual or other expected outcomes

  • the anticipated recovery implications

• the patient has sufficient time to consider and clarify information in order to make an informed decision, taking into account the context of the clinical situation

• the information provided and the consent give relate to the specific health care provided

What happens if there is insufficient (or no consent gained)?

• failure to obtain a pateint’s consent to heatlh care may result in a criminal charge of assault or civial action for battery

• in addition, failure to disclose material risks to a patient may give rise to civial action for negligence

• once given consent can be with drawn at any time

What to document with consent?

• details of Ix

• risks and benefits

• CI and precautions

• alternate treatments

• chance to ask questions

• agree to Rx/consent