Moving on from Rogers v Whitaker : A time to re-define the harm? Dr Bernadette Richards, Law School

Wallace v Kam [2013] HCA 19 Dr Kam is not liable to Mr Wallace for impairment of Mr Wallace’s right to choose whether or not to undergo the surgical procedure… He is not to be compensated for the occurrence of physical injury the risk of which he was prepared to accept. [39] (French CJ, Crennan, Kiefel, Gageler and Keane JJ) University of Adelaide2

Some comments from Rogers v Whitaker Nothing is to be gained by reiterating such expressions as “the patient’s right to self-determination” Oft-used and somewhat amorphous phrase “informed consent” Term informed consent is apt to mislead This is not a question of consent University of Adelaide3

Two concepts combined Information (standard) Consent (causation) “A patient has a right to determine what shall be done with his own body“ (Kirby J in Rosenberg v Percival (2001) 205 CLR 434, [142] referring to Schloendorff v Society of New York Hospital 105 NE 92 at 93 (1914)) University of Adelaide4

Wallace v Kam [2013] HCA 19 Sought treatment for condition of his lumbar spine Dr Kam performed surgery with two inherent risks: 1.bilateral femoral neurapraxia, and 2.1/20 chance of permanent and catastrophic paralysis. The first risk materialised Surgery was unsuccessful Claimed negligence on basis of no warning of either risk University of Adelaide5

Wallace v Kam [2013] HCA 19 Harrison J: – The legal cause of neurapraxia could not be the failure to warn of the risk of paralysis Court of Appeal ( Allsop P, Beazley and Basten JJA) – Divided in answering that question HCA (French CJ, Crennan, Kiefel, Gageler and Keane JJ): Preferred the majority approach that accorded with the original decision. University of Adelaide6

Wallace v Kam [2013] HCA 19 Referred us back to Rogers v Whitaker and the test for materiality. Rationale: ‘Making choice and empowering the patient to avoid a particular injury, the risk of which [the] patient is not prepared to accept’ [8] (reference to Chester v Ashfar) Emphasised the significance of causation Inevitably involves two questions: – Referring to historical fact – Normative enquiry (s5D of NSW CLA, s34 of SA CLA) University of Adelaide7

Wallace v Kam [2013] HCA 19 Factual enquiry, 3 possible outcomes: 1.Would have undergone the surgery even if warned (factual causation fails) 2.Would not have undergone treatment at all if warned (factual causation is not problematic) 3.Would have undergone the surgery at a later date (Chappel v Hart situation) ([18] – [20]) Legislation explicitly calls for policy consideration: ‘whether or not and why’ liability should be attached (s5d(4) CLA (NSW), s34(3) CLA (SA) University of Adelaide8

Wallace v Kam [2013] HCA 19 The critical question, as the Court of Appeal recognised and on which it divided, is the scope of liability question posed by s 5D(1)(b). Is it appropriate for the scope of Dr Kam's liability to extend to the physical injury in fact sustained by Mr Wallace in circumstances where Mr Wallace would not have chosen to undergo the surgical procedure had he been properly warned of all material risks but where he would have chosen to undergo the surgical procedure had he been warned only of the risk that in fact materialised? [30]s 5D(1)(b). University of Adelaide9

Wallace v Kam [2013] HCA 19 The policy that underlies requiring the exercise of reasonable care and skill in the giving of that warning is neither to protect that right to choose 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. It is appropriate that the scope of liability for breach of the duty reflect that underlying policy. [36] University of Adelaide10

Wallace v Kam [2013] HCA 19 Liability should not extend to harm from risks that the patient was willing to undergo University of Adelaide11

The duty of a medical practitioner to warn the patient of material risks inherent in a proposed treatment is imposed by reference to the underlying common law right of a patient to choose whether or not to undergo a proposed treatment [36] Policy that underlies requiring the exercise of reasonable care and skill in the giving of that warning is neither to protect that right to choose 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 [36] University of Adelaide12

Wallace v Kam [2012] NSWCA 82 Belief that there were no negative aspects to the surgery Lack of understanding of the risky nature of the procedure Of significance: the interrelationship between the nature and scope of the duty and causation Broad view of the nature of the duty to warn University of Adelaide13

Was this a meaningful choice??? University of Adelaide14