At the heart of Chappel v Hart: a warning about warning!

Owen Bradfield*

Introduction

Doctors are legally and ethically obliged to disclose apposite information regarding the nature, risks and benefits of a proffered treatment. As well as affording legal protection to both doctors and patients,[1] it arms patients with the capacity for meaningful, fully informed and autonomous decisions. Autonomy symbolises these appeals to make decisions without constraint or coercion, despite the beneficent intentions of the physician[2] and the imbalance of the doctor-patient relationship. This principle now governs judicial decisions, which recognise the ‘right of each person to bodily integrity’[3] even if doctors ‘do not consider [the decision] to be in his best interests.’[4] In the oft-quoted words of Cardozo J, ‘Every human being of adult years and sound mind has a right to determine what shall be done with his own body.’[5] Although doctors may understand the medical consequences of a patient’s choice, there are myriad extraneous factors (political, social, spiritual) which equally influence the patient. The ultimate choice necessarily remains with the patient since only they can balance the total costs and benefits of their own care. Thus, rather than being passive recipients of medical care, patients are empowered to participate in a therapeutic alliance[6] – which not only fosters patient compliance, but also promotes expeditious psychological and clinical recovery and makes adverse outcomes less unacceptable. In all, patients share in a treatment rather than suffer it,[7] making the time invested in better communication medically and socially profitable.

PART I:       BOLAM BANISHED

Unfortunately, the Hippocratic Oath – long espoused as a defining edifice of the craft of medicine – was a paternalistic ethical model that emphasised beneficence as the guiding axiom of medical practice. Moreover, it encouraged concealment of some information to protect patients from perceived harm. Until recently, the Bolam test championed this paternalism, declaring that the standard of care owed to a patient was based on common medical practice. In the words of McNair J, ‘[a doctor] is not negligent if he is acting in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.’[8] This outdated keepsake of hierarchical English society reflected the ‘reluctance of one profession (law) to countenance ordinary people challenging the rules laid down by another profession (medicine).’[9] As an elderly Scottish judge of a case brought by a patient against a doctor once remarked, ‘in my somewhat long experience I cannot remember having seen a similar case before.’[10]

Within the last 25 years, the Hippocratic Oath has been reinterpreted such that autonomy has risen to the fore, and become embedded within the parenchyma of beneficence. The Bolam test has now been unequivocally rejected while the scope and content of the duty to disclose has been widened. In 1980, Reynolds J said, ‘it is not the law that if all doctors fail to avoid a foreseeable injury then none are negligent.’[11] Likewise, in 1983, King CJ stated that ‘professions can adopt unreasonable practices and it is for the courts to determine the standard not the profession’[12] – a view shared by Lord Scarman.[13] The Medical Practice Act 1994 (Vic)[14] also defines unprofessional conduct as not only conduct of a lesser standard than that expected by a medical practitioner’s peers, but also by the public. Bolam also allowed the medical profession to protect its own interests and expeditiously discharge medical defendants from fault.

Despite Bolam’s flaws, some doctors express disquiet at its demise. They expostulate that it results in defensive consumer medicine, undermining the trust between doctor and patient (with clinical decisions increasingly tested in court[15]); and that it inundates patients with unwanted, unnecessary and incomprehensible information, that ultimately impairs informed decision-making. Many also stress the fallacy that patients can ever be ‘fully’ informed. Their capital concern is that it subverts the value (and public image) of medical opinion as being indisputable, even if antiquated, where ‘learned colleagues’ are beyond criticism. Yet the High Court has held that common practice may not conform to the standard of care required of a reasonably prudent person in non-medical professions,[16] so it is therefore not so unreasonable that similar limitations have been placed on the medical profession.

Rogers v Whitaker[17] clarified the legal duty of doctors regarding disclosure of information and advice, by confirming and rationally explicating a decade of appellate decisions,[18] and providing an unambiguous course for future cases. It rejected the Bolam principle, but appended that it is more relevant in deciding if a doctor has acted reasonably in diagnosis and treatment (where medical evidence may be persuasive) than in provision of information. The decision also established that doctors have a duty to disclose ‘material’ risks, ascertained by reference to the particular patient (subjective test), not just a reasonable patient (objective test).[19] To further decide what is material, a doctor should consider the nature of the treatment and matter to be disclosed, the patient’s temperament, health and desire for information[20] and the general surrounding circumstances.[21] This is appropriately sensitive to the individual patient’s autonomy, unlike the ‘reasonable patient’ test where autonomy is still subject to a paternalistic judicial standard.[22] It does much to neutralise the threat to basic liberty posed by contemporary health care.

Many doctors feel this subjective test imposes unfair, unclear and unrealistic legal burdens to warn every patient of risks as remote as 1:14,000, by ‘obscuring genuine dangers in a cascade of highly unlikely possibilities.’[23] Yet, surely this case depicts that patients in unusual situations (and anxious about certain risks) require more compassion. Regardless, the subjective test is more equitable – to doctors as well as patients. In Bustos v Hair Transplant Clinic,[24] it was held that the patient was so fixated on the anticipated benefits of a ‘juri flap’ transplant that he would have proceeded irrespective of warnings. Likewise, in Berger v Mutton,[25] it was found that it would be hard to believe that an experienced nurse would not be aware of the possible complications of a diagnostic procedure, for which there was no alternative. She would have therefore proceeded with the intervention even if warned. Had the old objective test been applied in these cases, the doctors could well have been liable. Many other cases have subsequently rejected the Bolam principle: Breen v Williams[26], Lowns v Woods[27] and now Chappel v Hart.[28]

A plethora of cases further define the dimensions of the duty. In Tekanawa v Millican[29] and Shaw v Langley,[30] information sheets and diagrams were deemed insufficient unless supplemented by an oral recital of risks. Similarly, Karpati v Spira[31] held that risks should be divulged as percentages rather than illusory terms such as ‘not uncommon’.[32] The Canadian case, Reibl v Hughes,[33] found a doctor negligent in not warning the patient that the proposed operation was not urgent, while in Haughian et al v Paine,[34] the surgeon owed the patient a duty to inform of non-surgical alternative treatment. Adelaide Anaesthetic Service v John Smith[35] even suggests that doctors should inform of the likely fee for the operation, and the Medicare ‘gap’! Faya v Almaraz[36] controversially imposed a duty on doctors to disclose their HIV status. Although less contentious and resolute, the present case of Chappel v Hart raises some equally vexing questions about how much doctors can and should disclose to their patients.

PART II:      CHAPPEL V HART – HAS THE PENDULUM SWUNG TOO FAR?

Historically, one source of great comfort to medical defendants and their insurers has been the often-insuperable hurdle of establishing a causal nexus between the misfeasance and the damage. This is so because even after warned of small risks, most patients are willing to run that risk, especially if the proposed treatment offers a significant therapeutic benefit. In this vein, Chappel v Hart erodes the ability of doctors to rest on the assumption that a claim will fail on causation, and follows the tendency for infusion of common sense and policy considerations in determining causation issues adopted in March v E & MH Stramare.[37] McHugh J, who dissented in that case, feared that such an approach would invite ‘subjective, unexpressed and undefined extra-legal values to determine legal liability.’[38] In addition, Chappel v Hart has widened the boundaries of the duty to warn well beyond that which many feel is reasonable. The decision not only makes it easier for patients to bring successful negligence claims against doctors, it also makes it difficult to predict what the common sense will be, which challenges lawyers on both sides to advise their clients of the likely outcome or quantum of damages awarded.[39] Thus, Chappel v Hart has met with considerable polemic, posing more questions than it answers.

The facts in Chappel v Hart are remarkably similar to those in Hatcher v Black and others.[40] In that case, Lord Justice Denning directed the jury to find in favour of the surgeon because the poor outcome was not due to his negligent performance of the operation, and because his decision to not broadcast the risks was beneficent. Such a decision today would be seen as an extreme of Bolam’s paternalism since it examined an individual medical opinion, rather than that of a medical body. However, has Chappel v Hart gone too far in fortifying patient autonomy?

1.     A New Duty?

It is incontestable that patients require information about medical risks before consenting to a medical procedure. However, Gaudron J added that there was ‘a duty to inform of more experienced surgeons practising in the field.’[41] Hart was deprived of the opportunity to be operated on later by a more experienced surgeon. Although other judges did not expressly echo this, their sentiment was congruous. Therefore, wherever inexperience of the practitioner may alter the risks run by a patient, the fact that others may be better at the procedure may need to be disclosed, since it could alter the patient’s provision of consent. So what are the practical consequences of such an obligation?

Young doctors lacking experience would not be consulted and therefore would not acquire skills. Their insurance rates would become inordinate. On the other hand, senior practitioners would become increasingly pre-eminent and powerful, making junior staff hesitant to allude to their errors. This could also complicate matters if senescence diminishes the proficiency of these almighty practitioners. Proficiency grows with experience – yet if young doctors are being denied experience because of unreasonable legal requisitions, then medical standards would decline which, ironically, would be to the eventual detriment of the patients supposedly protected by the disclosure. Furthermore, inexperience can be compensated for by greater prudence.[42]

Given these onerous demands suggested of doctors by the decision, many are questioning how far it extends. By way of illustration, does it mean that a referring medical practitioner is also liable for failing to refer a patient to the very best specialist, or at least, for not asking the patient whether they attached significance to which specialist they attend? One would assume the answer to be negative. Yet if the patient asks the doctor (either the treating or referring doctor) who is the most or least qualified specialist, the response is affirmative. Smith v Auckland Hospital Board[43] held health professionals have an obligation to answer a patient’s questions carefully and honestly, while in F v R ‘a request for information necessary to make an informed decision will ordinarily place the doctor under an obligation to give a truthful and careful answer.’ [44]

Hayne J, who dissented in Chappel v Hart, was concerned about the path that the majority took. If the doctor being consulted had to make the comparison, he asked how proficiency could be judged: ‘any observer of a skilled profession at work knows that some are better than others but it is equally obvious that the performance of even the best is subject to variation.’[45] Accordingly, how sure could a practitioner ever be of the proficiency of another doctor, and to what extent should doctors know of other doctors’ success rates? Moreover, if a doctor advises a patient not to consult another doctor because of current personal factors in that doctor’s life which could adversely affect patient outcome, some suggest consequences in the law of defamation.[46] Fortunately, it is unlikely that one doctor could ever be certain about the competency of another, which would make it difficult to prove to a court that a doctor should have advised of superior propensity elsewhere.

Clearly, this ‘adventitial’ duty to convey information about comparative proficiency specifically disadvantages less-experienced doctors. Yet would it necessarily follow that more-experienced doctors are under a higher duty to disclose information about known risks? More importantly, would inexperience relieve a junior doctor from liability for failing to disclose a risk of which only seasoned senior doctors would be aware? The answer may be found in Gover v South Australia and Perriam.[47] There, it was held that if a risk ‘has not entered the general corpus of knowledge of which all experts in the defendant’s field could reasonably be expected to be aware’ then the doctor is not liable if they fail to disclose it. In Fraser v Vancouver General Hospital,[48] it was held that interns must exercise the ordinary skill of a junior doctor. So perhaps there is some solace.

Despite the heavy burden that disclosure of comparative proficiency would exact on medical doctors, it is simply a further reflection of the ever-burgeoning rights of patients. After all, it is logical for any sensible patient submitting themselves to a risky operation to want to know beforehand if their surgeon has never previously performed the operation, whilst the surgeon next door has a 100% success rate from 300 such operations. Patients will therefore have greater rights than those seeking financial advice from an accountant, but as Freckelton rightly points out, ‘the stakes are much higher in the medical context than in almost any other.’[49]

A recent discussion paper[50] found that consumers require information about the quality of particular doctors and institutions before making rational decisions about who to consult and where to go for the shortest waiting time and the best outcome. In consequence, the National Health Service ‘league tables’ in Britain and the Cardiac Surgery Reporting System in New York[51] have developed clinical achievement markers for health facilities with the aim of ‘saving lives’.[52] With public scrutiny of the results, surgeons and facilities with high ‘risk-adjusted mortality rates’ must improve outcomes or risk becoming uncompetitive.[53] The paper recommended the development of such data for Australian health facilities, but not individual practitioners. However, this could lead to elitism amongst the more favourably-reported institutions, which would be tempted to raise their prices and therefore become accessible only to the affluent. It would also allow the destructive caste mentality to flourish – creating a schism between junior and senior doctors and preventing juniors from fulfilling their full potential as evolving clinicians. Overwhelming public support for disclosure of expertise should not legally justify disclosure regarding comparative proficiency because the reasonable person is objective and inexorably free from such emotive persuasion. Even so, such an austere duty is based on sound ethical tenets since information is only adequate when more of it will not alter the patient’s decision. In fact, most doctors would probably inform patients when other practitioners are more experienced.

Although the Declaration of Lisbon accords that ‘the patient has the right to choose his physician freely’,[54] the scales of freedom need to be equally balanced against the doctors’ rights and the public interest in maintaining a viable and affordable medical profession. Many practitioners regard a malpractice suit as their life’s most stressful event,[55] yet there remains a widely expressed judicial view that medical practitioners should not see malpractice suits as a moral blight,[56] but rather as a means of drawing upon their insurance to compensate a patient who has suffered. As such, even though Gaudron J’s comment was obiter, it has incited heated debate amongst medical professionals inasmuch as it carries crucial implications.

2.     Causation

For any claim in negligence to succeed, the patient must prove that the particular damage was caused by the eventuation of that risk not mentioned by the doctor. In South Australian Asset Management Corp v York Montague Ltd,[57] Lord Hoffman gave a hypothetical example of a mountaineer, concerned about the fitness of his knee, who climbs a mountain only after his doctor pronounces his knee fit. He believes that were the mountaineer to suffer a foreseeable injury unrelated to the fitness of the knee (eg in an avalanche), then the doctor is not liable. By analogy, in Chappel v Hart, failing to warn did not cause the injury, because extrinsic factors actualised. Thus, comparing propensity blurs the distinction between the failure to warn and the performance of the operation. Since Dr Chappel was not negligent in performing the operation, Clarke argues that the comparison of proficiency should not involve the results of the operation.[58] Unlike the patient in CES v Superclinics,[59] Hart argued that the loss of a chance was the injury itself, rather than the cause. Therefore, to base her claim on her damaged voice, although devastating, is not the real issue because that risk is always present if she sees another doctor. In other words, the effects of failing to warn should be based exclusively on whether it exposed Hart to a greater risk, without concern for the seriousness of that injury.

On this issue, the High Court sanctioned the ‘common-sense’ view of causation. As Clarke suggests, the fact that there were five separate judgements to support common sense, is worrying.[60] Furthermore, should common sense refer to that knowledge which is common to the medical profession, or the lay community (which includes High Court judges)? This becomes relevant when one considers that uncertainty often surrounds the ætiology of disease: proof that alleged negligence caused a particular injury often relies on complex medical evidence. Even if a medical intervention causes the injury, it is often difficult to determine to what extent any one negligent act contributed. Thus, to adopt a common-sense approach to causation is to fancifully over-simplify complex causal issues.

With reference to league tables, it is too simple to infer that a surgeon has a high risk adjusted mortality rate simply because they are less experienced. It may be because they work in a financially impoverished hospital with poor facilities and an inexperienced support team, or simply because they deal with patients with an inherently poor prognosis. Medicine is an inexact science and not accurately reducible to statistical evaluation which would otherwise portray a disfigured précis with the potential to significantly perturb medical practice. For instance, predicted mortality outcomes are inaccurate, accounting for only a minute proportion of the observed differences in mortality rates between practitioners.[61] Surely with this in mind, the argument that the failure to warn exposed Hart to a greater risk of injury seems too remote.

In Tahir v Haringey Health Authority, it was stated that:

when a doctor has been at fault, no court wishes to send his patient away empty-handed. But where the fault is not shown to have resulted in any particular loss of amenity, there is nothing which the court can legitimately translate into money by way of compensation.[62]

Traditionally, where a patient claims that they would have continued treatment despite the lack of information, negligence has failed on causation. However, Teik Huat Tai v Saxon[63] held in favour of a patient who would have still had the procedure despite the doctor’s failure to warn. Perhaps Australian courts are, quite literally, moving towards a strict liability interpretation of the duty to warn: where the doctor will assume responsibility for any mischance, if disclosure is not made. If so, Waddams propounds a strong argument that if the object of the High Court’s decision was to reinforce the physician’s duty to disclose, then an award for the intangible loss of autonomy and dignity would be more frank and direct.[64] More temperate sums could be awarded without injury, making outcomes predictable and acceptable to medical professionals and insurers. Fundamentally, the court’s decision suggests that the public interest of liberty and freedom of choice upheld by the duty to warn outweighs mortal concerns for bodily health and safety; that the intrinsic value of patient autonomy supplants its instrumental value.

3.     Loss of a Chance

It has been suggested that through failing to warn of the risk, Dr Chappel created the situation in which the unlikely event was able to occur since the risk would not have eventuated if it had been postponed. However, the risk of perforation is inherent in the operation and therefore remains the same, irrespective of who performs the operation, or when. Furthermore, once perforation occurs, the risk of mediastinitis is random,[65] depending more on the patient’s immune response. Moreover, laryngeal nerve palsy resulting from mediastinitis is so remote that it is scarcely recognised in medical textbooks.[66] Thus, unless the patient claims they would have unconditionally refused the operation, the risk remains inherent. Dr Chappel had no part to play in the causing the risk to be inherent, nor did he perform the operation negligently, causing the risk of injury to rise. Even if he was less experienced in performing the operation, it does not follow that he was more likely to cause Hart to lose a chance at avoiding the injury. In other words, the deprivation is not associated with an increased risk of injury, let alone to amount to the cause of the injury. At the very least, this was not proved and as such, is baseless. Unfortunately, in Chappel v Hart, the coincidence between the failure to warn and the loss suffered by Hart appeared to shift the evidentiary burden onto the doctor. Yet as McHugh J argues in his dissent, the doctor-patient relationship provides the patient with the legal right to have conditions examined, diagnosed, and treated, but not to seek a higher standard of care or better treatment from another doctor. In any event, Chappel had no reason to doubt his own expertise in ear, nose and throat (ENT) surgery, so should it have crossed his mind to inform Hart of more experienced surgeons?

The loss of a chance argument was also flawed in assuming that the particular risk was so rare that if performed later, it would have been unlikely to complicate the operation. Statistically, this is quixotic. For example, the chance of tossing an unweighted coin and obtaining heads remains 50 per cent irrespective of the proportion of heads previously obtained. This is likely to be a relic of the appeal to the New South Wales Supreme Court[67] where Handley JA stated that ‘the risks…were greater during the actual surgery than during the hypothetical surgery.’ He was no doubt influenced by industrial accident cases where causation was established because the defendant’s breach of duty increased an existing risk, which eventuated.[68] However, one could validly argue that postponing the treatment would increase the risk of complications. Hart’s condition was progressive, and could eventually have become a medical emergency, where the chances of surgical mishap in a busy casualty department were augmented. Gaudron J’s reasoning on the issue of the reducibility of the risk is weakened when, in response to Dr Chappel’s argument that the damages should be reduced because the risk remains even if another surgeon performs the operation, she states that the risk is too small to be quantifiable. Additionally, the conclusion reached on this point differs to that in Obey v Yeo.[69] Although immediate surgery was required in that case, it was found that the probability of the same complication arising at a later date remained unchanged. Lastly, Professor Benjamin’s evidence[70] that none of his patients ever developed laryngeal nerve palsy should have established no more than that the complication was rare, but instead it was interpreted as implying superior aptitude.[71] But was Professor Benjamin really all that qualified? Mendelson[72] found that senior ENT surgeons performed no more than a dozen of these operations, making Professor Benjamin uniquely industrious (150 operations)!

The decision nevertheless repeats previous assertions that resolving issues of legal causation requires value judgements to be made, because the function of causation in law is to ascribe responsibility and liability for conduct and consequences. In other words, if a cause is uncertain philosophically or scientifically, it is not necessarily uncertain in law. Judges have a constitutional obligation to make value judgements, but they must also substantiate these judgements within a ‘strong framework of explanatory concepts and principles.’[73]

CONCLUSION

Unequivocally, there has been a calibrated yet cardinal change since Bolam from medical paternalism to conservatism. Chappel v Hart elucidated and underscored this change by delivering a detrimental decree against the views and values of an unprepared medical profession. Despite the controversial side effects, the intended and accordant message is that the duty to disclose is essential to the mutual trust between doctor and patient, and not a necessary evil to which mere lip-service must be paid. In the words of Hayne J, ‘enlarging the circumstances in which damages will be awarded… may well tend to promote the giving of fuller advice.’[74] In so doing, the High Court extended, even bypassed, causal principles on the grounds of public policy.[75] In effect, Dr Chappel was strictly liable for his actions that were morally responsible for the outcome.[76] Kirby J also supported recovery by Hart by reference to the importance of the duty that has been breached. The High Court, a fortiori, is marking its disapproval of doctors who breach not only an ethical, but also a clearly stated legal duty to disclose. In this sense, the case can be seen as one of the strongest declarations of patient autonomy. When doctors impart information, there is an imbalance of power, and patients’ rights are in peril. It is for this reason that the final conclusion reached is ethically affable, even if the reasoning is less so.

Many doctors feel that ‘the law is becoming an insatiable cormorant in matters of medicine’[77] – with escalating medical consumerism resulting in incessant medical litigation that occupies valuable time and resources, and raises insurance premia. Actually, the number of medical negligence cases per year is staggeringly small (of 172,000,000 medical services, 1500 court cases[78]) and the now extortionate premia is due mainly to medical defence under-funding during the 1980s.[79] Despite this, 84 per cent of doctors order more tests, arrange more referrals or refuse to perform certain procedures for fear of litigation.[80] There must, therefore, be some sympathy for the view among many doctors and lawyers that in cases such as Chappel v Hart, it is easy to be wise after the event, and ‘condemn as negligence that which was only a misadventure.’[81] Legal liability was imposed on Dr Chappel who failed to warn of a ‘random risk’, yet performed the operation with due care and skill. Furthermore, the medical profession frequently advances the view that patients are innately inept at understanding the information being imparted. However, to accept this as a valid reason for failing to disclose information does not encourage doctors to impart information in elementary phraseology. For instance, diarrhoea and abdominal pain are matters that almost all understand, even if the precise medical reasons evade comprehension. It is too simplistic to assume that this equates to a ‘general incapacity to understand and use information in a manner which makes sense.’[82] Likewise, advances in modern medical technology, treatment and diagnostics may provide the public at large with unrealistically high expectations of medical interventions. The onus is therefore on doctors to inject patients with more realistic ideas about intended therapy.

At length, despite the questionable line of reasoning adopted on many issues, it is the conclusive message that is momentous. Chappel v Hart seeks to ensure that doctors only practice within their specialties, and recognise when second opinions or expert skills are required. Nevertheless, instead of viewing these recent changes as undermining the value of modern medicine, they should be regarded more as an extension of the medical art that ultimately maintains the pre-eminence of the medical profession by empowering the community, not just doctors. Recent attempts by the courts to clarify the patient’s legal position should be seen as appropriate by members of a caring profession. Above all though, Chappel v Hart reinforces the need to communicate better in order to improve patient’s health, not just avoid litigation. By diligently embracing the duty to warn, the art of healing will become more candid, transparent and cognisant of human dignity. In the words of Isaiah Berlin:

patients should be considered as thinking, willing, active beings, bearing responsibility for their own choices and able to explain them by reference to their own ideas and purposes.[83]