Malpractice Liability for the Failure to Adequately Educate Patients: The Australian Law of “Informed Consent” and Its Implications for American Ethics Committees

1993 ◽  
Vol 2 (3) ◽  
pp. 371-379
Author(s):  
Don Chalmers ◽  
Robert Schwartz
Keyword(s):  
Informed Consent ◽  
Healthcare Providers ◽  
Ethics Committees ◽  
Simple Description ◽  
High Court ◽  
American Patient ◽  
Malpractice Liability ◽  
High Court Of Australia ◽  
Negligence Law ◽  
Substantive Law

At first glance, the first informed consent case to be decided by the High Court of Australia appears to be little more than a clear and simple description of the substantive law accepted in most American jurisdictions - although that is no small accomplishment in and of itself. In Rogers v. Whitaker, the highest court in Australia succinctly and persuasively rejected informed consent as a species of battery law, accepted it as a form, of ordinary professional negligence law, and adopted the “American” patient-oriented standard (rather than the British doctor-oriented standard) for measuring the breach of a healthcare professional's duty to her or his patients. On second look, however, the opinion is an even more significant one because it reveals that the law of informed consent is now based on principles broad enough to create a duty on the part of healthcare providers to offer adequate health education to all of their patients. In Implicitly recognizing the physician's duty to educate her or his patients, the High Court's judgment is consistent with a view increasingly held In the medical and ethical communities that teaching patients about how to maintain their health is just as much a part of the doctor's function as diagnosing and treating disease. It may have taken 2,500 years for medicine to progress from, the Hippocratic notion that physicians should apply treatment to patients who are kept in blissful Ignorance of their condition and Its remedy, but there Is little doubt that medicine finally has entered a post-Hippocratic era.

scholarly journals Who are we Trying to Protect? The Role of Vulnerability Analysis in New Zealand's Law of Negligence

2016 ◽  
Vol 47 (1) ◽  
pp. 19
Author(s):  
Scott William Hugh Fletcher
Keyword(s):  
New Zealand ◽  
City Council ◽  
High Court ◽  
North Shore ◽  
The Law ◽  
High Court Of Australia ◽  
Negligence Law ◽  
Insight Into ◽  
Consistent Application

New Zealand has incorporated ideas of vulnerability within its law of negligence for some years. It has not, however, clarified what is meant by vulnerability or the role the concept plays within the broader duty of care framework. Several obiter comments in Body Corporate No 207624 v North Shore City Council (Spencer on Byron) suggest the concept ought not to be part of the law due to its uncertain and confusing nature. Subsequent cases have, however, continued to use the concept, and continue to use it despite both its historically ill-defined nature and the additional uncertainty added by Spencer on Byron. This article argues that vulnerability can and ought to be a part of New Zealand negligence law. With a consistent application of a single test for vulnerability – that established in the High Court of Australia in Woolcock Street Investments Pty Ltd v CDG Pty Ltd – vulnerability can be conceptually certain and provide useful insight into the issues posed by the law of negligence.

scholarly journals Open Justice, Efficient Justice and the Rule of Law: The Increasing Invisibility of Special Leave to Appeal Applications in the High Court of Australia

2020 ◽  
Vol 48 (2) ◽  
pp. 186-213
Author(s):  
Pamela Stewart ◽  
Anita Stuhmcke
Keyword(s):  
Rule Of Law ◽  
Judicial Power ◽  
Public Confidence ◽  
High Court ◽  
The Rule Of Law ◽  
Administration Of Justice ◽  
High Court Of Australia ◽  
Substantive Law ◽  
Available Information

This article examines the application of the rule of law to special leave to appeal applications (‘SLAs’) in the High Court of Australia. SLAs are a fusion of administrative and judicial power. As an administrative tool, determinations of SLAs are a workload filter, limiting the appeals heard by the Court. As an exercise of judicial power, SLA determinations have significant impact upon the parties to litigation and the development of substantive law. Presenting the findings of data analysis of the determination of SLAs in the High Court of Australia from 2013 to 2015, we identify the loss of publicly available information brought about by changes to the High Court Rules in 2016. Using this evidence, we argue that the current administration of SLAs preferences efficiency to the detriment of public confidence in the administration of justice. We suggest facilitating the rule of law through publication of the written submissions for SLAs.

scholarly journals Montgomery, informed consent and causation of harm: lessons from Australia or a uniquely English approach to patient autonomy?

2018 ◽  
Vol 44 (6) ◽  
pp. 384-388 ◽  
Author(s):  
Malcolm K Smith ◽  
Tracey Carver
Keyword(s):  
Informed Consent ◽  
Information Disclosure ◽  
Healthcare Providers ◽  
Health Board ◽  
Patient Decision Making ◽  
Rigorous Approach ◽  
Patient Decision ◽  
Uk Supreme Court ◽  
The Uk ◽  
Negligence Law

The UK Supreme Court in Montgomery v Lanarkshire Health Board adopts an approach to information disclosure in connection with clinical treatment that moves away from medical paternalism towards a more patient-centred approach. In doing so, it reinforces the protection afforded to informed consent and autonomous patient decision making under the law of negligence. However, some commentators have expressed a concern that the widening of the healthcare providers’ duty of disclosure may provide impetus, in future cases, for courts to adopt a more rigorous approach to the application of causation principles. The aim would be to limit liability but, in turn, it would also limit autonomy protection. Such a restrictive approach has recently been adopted in Australia as a result of the High Court decision in Wallace v Kam. This paper considers whether such an approach is likely under English negligence law and discusses case law from both jurisdictions in order to provide a point of comparison from which to scope the post-Montgomery future.

Search for Principle - The Government's Liability in Negligence for the Careless Exercise of its Statutory Powers

2000 ◽  
Vol 31 (3) ◽  
pp. 629
Author(s):  
Thomas Geuther
Keyword(s):  
New Zealand ◽  
Public Law ◽  
Public Authority ◽  
Special Treatment ◽  
Duty Of Care ◽  
Supreme Court Of Canada ◽  
Public Authorities ◽  
High Court ◽  
The Supreme Court ◽  
High Court Of Australia

For many years the English courts have struggled to develop a principled approach for determining when a public authority can owe a duty of care in respect of the exercise of its statutory powers. Initially, public authorities received no special treatment. Then the courts conferred an almost complete immunity on them, requiring public law irrationality to be established before considering whether a duty could arise. The English approach has not been adopted elsewhere in the Commonwealth. The High Court of Australia and the Supreme Court of Canada have developed different tests, and the New Zealand courts, while never explicitly rejecting the English position, have never followed it. This paper argues that a modified version of the Canadian Supreme Court's approach should be adopted in New Zealand. It proposes that irrationality be a precondition to the existence of a duty of care only where policy considerations are proved to have influenced the decisions of a public authority in exercising its statutory powers.

scholarly journals Obligations, consent and contracts in Scots law: re-analysing the basis of medical malpractice liability in light of Montgomery v Lanarkshire Health Board

Legal Studies ◽  
2021 ◽  
pp. 1-21
Author(s):  
Jonathan Brown
Keyword(s):  
Informed Consent ◽  
Legal System ◽  
Medical Malpractice ◽  
Health Board ◽  
Medical Negligence ◽  
University Hospitals ◽  
Malpractice Liability ◽  
Patient Relationships ◽  
Physician Patient ◽  
Medical Regime

Abstract Professors MacQueen and Thomson have defined ‘contract’, within Scots law, as denoting ‘an agreement between two or more parties having the capacity to make it, in the form demanded by law, to perform, on one side or both, acts which are not trifling, indeterminate, impossible or illegal’. This definition reflects the fact that Scottish contracts are underpinned by consent, rather than by ‘consideration’. This, naturally, has the potential to be of great significance within the context of physician/patient relationships, particularly since the 2006 case of Dow v Tayside University Hospitals NHS Trust acknowledged that these relationships could be contractual in nature. This observation is of renewed importance since the landmark decision in Montgomery v Lanarkshire Health Board, which found that physicians must ensure that they obtain full and freely given ‘informed consent’ from their patients, prior to providing medical services. In light of the present medical regime which requires ‘doctor and patient [to] reach agreement on what should happen’, the basis of liability for medical negligence, in Scotland, requires reanalysis: ‘To have a contract only when the patient pays is not consistent with a legal system which has no doctrine of consideration in contract’.

scholarly journals INTERPRETATION AND RECTIFICATION IN AUSTRALIA

2017 ◽  
Vol 76 (3) ◽  
pp. 483-486 ◽  
Author(s):  
Paul S. Davies
Keyword(s):  
New South ◽  
Common Law ◽  
New South Wales ◽  
High Court ◽  
South Wales ◽  
Housing Corporation ◽  
Lower Courts ◽  
The Law ◽  
High Court Of Australia

Both interpretation and rectification continue to pose problems. Difficulties are compounded by blurring the boundary between the two. In Simic v New South Wales Land and Housing Corporation [2016] HCA 47, the High Court of Australia overturned the decisions of the lower courts which had held that performance bonds could be interpreted in a “loose” manner in order to correct a mistake. However, the documents could be rectified in order to reflect the actual intentions of the parties. This decision should be welcomed: the mistake was more appropriately corrected through the equitable jurisdiction than at common law. Significantly, the concurring judgments of French C.J. and Kiefel J. highlight that the law of rectification now seems to be different in Australia from the law in England. It is to be hoped that the English approach will soon be revisited (see further P. Davies, “Rectification versus Interpretation” [2016] C.L.J. 62).

scholarly journals An open and reproducible analysis of a controversial criminal law decision: Mission IMM-possible?

2020 ◽  
Author(s):  
Jason Chin
Keyword(s):  
Open Source Software ◽  
Research Process ◽  
High Court ◽  
The Public ◽  
Judicial Decisions ◽  
Research Fields ◽  
Law And Policy ◽  
Criminological Research ◽  
Reproducible Analysis ◽  
High Court Of Australia

Reproducibility and open access are central to the research process, enabling researchers to verify and build upon each other’s work, and allowing the public to rely on that work. These ideals are perhaps even more important in legal and criminological research, fields that actively seek to inform law and policy. This article has two goals. First, it seeks to advance legal and criminological research methods by serving as an example of a reproducible and open analysis of a controversial criminal evidence decision. Towards that end, this study relies on open source software, and includes an app (https://openlaw.shinyapps.io/imm-app/) allowing readers to access and read through the judicial decisions being analysed. The second goal is to examine the effect of the 2016 High Court of Australia decision, IMM v The Queen, which appeared to limit safeguards against evidence known to contribute to wrongful convictions in Australia and abroad.

Contextualism: ‘The Modern Approach to Statutory Interpretation’

2018 ◽  
Vol 41 (4) ◽  
Author(s):  
Jeffrey Barnes
Keyword(s):  
Legal System ◽  
Court Cases ◽  
Statutory Interpretation ◽  
Modern Approach ◽  
High Court ◽  
Football Club ◽  
High Court Of Australia ◽  
Scholarly Attention

The widespread realisation that ‘[l]egislation is the cornerstone of the modern legal system’ (Justice McHugh) has brought increased judicial and scholarly attention to legislation’s partner, statutory interpretation. In CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 the High Court of Australia referred to the ‘modern approach to statutory interpretation’. That modern approach has subsequently been called ‘contextualism’. The central questions addressed in this article are: what is contextualism? Is it principled? And is it a coherent general approach? After stating and illustrating key principles from six High Court cases, the author considers challenges to contextualism, including textualism and purposivism. Like the statutes it monitors, statutory interpretation may be ‘broad and deep and variegated’, as Lord Wilberforce once observed. But, at the same time, it is concluded that statutory interpretation does not lack a general approach that lends coherence to the interpretative enterprise – for contextualism performs this function.

Sign in / Sign up

Export Citation Format

Share Document