Interpreting Informed Consent by Stealth

Abstract

The requirement for health-care professionals to provide competent patients with sufficiently detailed information has become a settled aspect of medical law and ethics. This chapter examines two approaches to this requirement which typify legal systems across the world: the approach in England which applies the professional standard as exemplified in the case of Bolam v Friern Hospital Management Committee and the approach in Australia confirmed in the leading case of Rogers v Whitaker, which applies the “prudent patient” test. Superficially, the tests appear very different, but the attitude of the English courts and the medical profession to the issue of disclosure to competent patients of the risks of medical treatment has radically changed in recent years. This has been achieved without any change to the legal test for disclosure of risks, but rather, there has been a significant change in the interpretation of the test. This has drawn the two tests together.

The chapter goes on to review the limitations of both tests in that the tests concentrate on the level of information to be disclosed and says little about how far a health-care professional must ensure that the patient has actually understood the information disclosed. It will be considered if it is practical for any test to go this far.

The chapter concludes with practical guidelines for health-care professionals on approach to their duty at law under either system.

The terms “doctor” and “health-care professional” are used interchangeably throughout the chapter.