Informed Consent for Major
Gynaecologic Oncology Surgery
XXVIII Australian Society of
Gynaecologic Oncologists
Scientific Meeting
5 July 2013
Professor Les McCrimmon
Barrister
William Forster Chambers
Presentation to XXVIII ASGO Scientific Meeting by Prof L McCrimmon 5 July 2013
Consent and Duty of Care
Focus of Discussion:
 Standard of care
 The Bolam Principle in
Australia
 Evidence of prevailing
practice
 Common law duty to warn
 Therapeutic privilege
 Statutory reform re diagnosis
and treatment
Presentation to XXVIII ASGO Scientific Meeting by Prof L McCrimmon 5 July 2013
Standard of Care
“The standard of reasonable
care and skill required is
that of the ordinary skilled
person exercising and
professing to have that
special skill …”: Rogers v
Whitaker (1992) 175 CLR
479 at 483.
Presentation to XXVIII ASGO Scientific Meeting by Prof L McCrimmon 5 July 2013
The Bolam Principle
Bolam Principle:
A doctor is not negligent if he or she “acts in
accordance with a practice accepted at the time as
proper by a responsible body of medical opinion
even though other doctors adopt a different
practice. In short, the law imposes the duty of care:
but the standard of care is a matter of medical
judgment”.
Sidaway v Governors of Bethlem Royal Hospital [1985] AC
871 at 881 (per Lord Scarman). See also Bolam v Friern
Hospital Management Committee [1957] I WLR 582.
Presentation to XXVIII ASGO Scientific Meeting by Prof L McCrimmon 5 July 2013
The Bolam Principle in Australia
Civil Liability
Act reform
(2002)
Naxis v Western General
Hospital (1999)
Rogers v Whitaker (1992)
Presentation to XXVIII ASGO Scientific Meeting by Prof L McCrimmon 5 July 2013
Common law: Diagnosis/treatment vs Advice
Diagnosis/
treatment
Standard of
Care
Advice
Patient’s
contribution
limited
Provided
according to
practitioner’s skill
Valid Consent
Rogers v Whitaker (1992) 175 CLR 479 at 489
Presentation to XXVIII ASGO Scientific Meeting by Prof L McCrimmon 5 July
2013
Evidence of Prevailing Practice
 Prevailing medical practice will have an influential role
in determining whether the diagnosis and treatment
met the requisite standard of care;
However
 Whether the patient has been given all the relevant
information on which to give consent is not a question
which depends on medical standards or practices.
See: Civil Liability Act (NSW) ss 5O, 5P, (Qld) s 22, (SA) s 41, (Tas)
s 22, (WA) ss 5PB; Wrongs Act (Vic), ss 59, 60. In ACT and NT see
Rogers v Whitaker (1992) 175 CLR 479 at 490; but cf Naxakis v
Western General Hospital (1999) 197 CLR 269 at 276-6, 285, 297.
Presentation to XXVIII ASGO Scientific Meeting by Prof L McCrimmon 5 July 2013
Advice: Legal Duty to Warn
“[A] doctor has a duty to warn a patient
of a material risk inherent in the
proposed treatment; a risk is material if,
in the circumstances of the particular
case, a reasonable 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
duty is subject to the therapeutic
privilege”: Rogers v Whitaker (1992) 175
CLR 479 at 490.
Presentation to XXVIII ASGO Scientific Meeting by Prof L McCrimmon 5 July 2013
However . . .
The failure of the
medical practitioner to
warn of a risk the
evidence shows the
patient would have
been prepared to
accept will not give
rise to compensation.
Presentation to XXVIII ASGO Scientific Meeting by Prof L McCrimmon 5 July 2013
Wallace v Kam [2013] HCA 19 at [36]
“[T]he policy that underlies requiring the
exercise of reasonable care and skill in
the giving of [a] warning is neither to
protect [the] right to choose [whether or
not to undergo treatment] nor to protect
the patient from exposure to all
unacceptable risks. The underlying
policy is rather to protect the patient
from the occurrence of physical injury
the risk of which is unacceptable to
the patient.”
Presentation to XXVIII ASGO Scientific Meeting by Prof L McCrimmon 5 July 2013
Need to be ‘Patient Focused’
Both Rogers v Whitaker and
Wallace v Kam “can be interpreted
as requiring that the information to
patients needs to be ‘patient
focused’. What information may the
patient require – not what
information does the practitioner
think a patient needs”: Kerridge, Lowe,
Stewart, Ethics and law for the health
professions (4th ed, 2013) at 357.
Presentation to XXVIII ASGO Scientific Meeting by Prof L McCrimmon 5 July 2013
Advice: Elements of Valid Consent
Elements which enable valid consent:
 Competence
 Voluntariness
Elements which inform valid consent:
 Disclosure of information
 Patient’s understanding of information
Elements which enact valid consent:
 Decision (including specificity)
 Authorisation (of the chosen treatment plan)
Kerridge, Lowe, Stewart, Ethics and law for the health
professions (4th ed, 2013) at 330
Presentation to XXVIII ASGO Scientific Meeting by Prof L McCrimmon 5 July 2013
Principles of Valid Consent
 Clients are entitled to make their own decisions about interventions and
should be given adequate information on which to base these decisions
 Competence: consent is only valid if the client is competent to understand
and authorise the intervention.
 Adequate information on the issue and intervention options on which to
make a decision should be provided in a form appropriate to the clients
circumstances, personality, expectations, fears, beliefs, values and cultural
background
 Voluntariness: there should be no coercion and the client is free to accept
or reject the advice
 Process should be a frank & honest information exchange from both
parties
 A continual process – clients may change their decision about
interventions after commencement of the intervention
Adapted from Informed Consent for Treatment/Intervention, VHA Clinical
Governance in Community Health Discussion Paper (2009)
Presentation to XXVIII ASGO Scientific Meeting
by Prof L McCrimmon 5 July 2013
Advice: Therapeutic Privilege
 Therapeutic privilege has been described as “an
opportunity afforded to the doctor to prove that he or she
reasonably believed that disclosure of a risk would prove
damaging to a patient”: Rogers v Whitaker (1992) 175
CLR 479 at 486.
 Note, however, that an American case (cited with
approval by the High Court in Rogers v Whitaker) held
that therapeutic privilege “does not accept the
paternalistic notion that the physician may remain silent
simply because divulgence might prompt the patient to
forego therapy the physician feels the patient needs”:
Canterbury v Spence (1972) 464 F 2nd 772 at 789.
Presentation to XXVIII ASGO Scientific Meeting by Prof L McCrimmon 5 July 2013
Diagnosis/Treatment: Statutory Reforms
 A statutory test of standard of care relating to
diagnosis and treatment has been
implemented in NSW, Qld, SA, Tas, Vic, WA.
 The statutory test represents a modified
Bolam principle.
 Statutory test – requires peer professional
opinion to be widely accepted (but does not
require universal acceptance) as competent
professional practice in Australia.
Presentation to XXVIII ASGO Scientific Meeting by Prof L McCrimmon 5 July 2013
If test is met . . .
 A medical practitioner does not incur liability in
negligence arising from the provision of a
professional service.
 Exceptions:
 Does not apply to duty to warn of risk;
 Does not apply if the court considers that the
professional opinion relied upon by the
medical practitioner was irrational or
unreasonable.

Eg, practices that are not evidence based or
ignore clinical guidelines without justification: see
C Sappideen, ‘Bolam In Australia: More Bark Than Bite’
(2010) 33 NSWLJ 386 at 423.
Presentation to XXVIII ASGO Scientific Meeting by Prof L McCrimmon 5 July 2013
Prof Les McCrimmon
William Forster Chambers
26 Harry Chan Avenue · GPO Box 4369 Darwin · NT
t +61 8 8982 4700 f +61 8 8941 1541
e lmccrimmon@williamforster.com
Presentation to XXVIII ASGO Scientific Meeting by Prof L McCrimmon 5 July 2013