Historic case that set the standard for informed consent in Australia

When discussing treatment options, and to help patients make an informed decision about their treatment, doctors must warn patients about material risks. These include: 

• Objective risks – risks that a reasonable person in the patient’s position would likely want to know about. 
• Subjective risks – risks the doctor knows (or should know) the particular patient would find significant, based on their individual situation, concerns or medical history. 

Background

Ms W had lost almost all sight in her right eye after a childhood injury. She saw Dr R, an ophthalmic surgeon, who recommended surgery that could improve the appearance and possibly restore some vision. She agreed to the surgery. 

While the procedure was performed competently, it did not restore her sight. Soon after, Ms W developed a rare complication called sympathetic ophthalmia in her good eye. She eventually lost most of her remaining vision and was almost completely blind. 

This complication is very rare, affecting about 1 in 14,000 cases. However, the risk is slightly higher in patients with a history like Ms W’s. 

The legal issue 

Ms W argued that Dr R should have warned her about this risk. Dr R said the risk did not occur to him and that most doctors at the time would not have mentioned it either. He believed he had acted in line with accepted medical practice (‘the Bolam principle’). 

The High Court disagreed. It said the issue was not just what other doctors might have done, but whether the information provided allowed Ms W to make an informed decision. 

The High Court's decision

The Court said doctors have two duties: 

1. To provide treatment with appropriate skill and care, based on accepted medical standards. 
2. To give patients enough information to make an informed decision about their care. 

It was the second duty, relating to informed decision-making, that was the focus of the case.  

The Court stated:  

“The law should recognize that 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." 

Put simply, a risk is considered material if: 

• a reasonable person in the same position would likely want to know about it (objective test), or 
• the doctor is, or should be, aware that the particular patient would likely see it as important (subjective test). 

In this case, Ms W had repeatedly asked about complications and specifically expressed concern about her good eye. The Court said this made the risk material and that she should have been warned of it. 

The Court found that Dr R breached his duty to warn Ms W about a risk that was clearly significant to her. Without that information, she was not able to make a fully informed decision. 

As a result of the loss of her remaining vision, Ms W was awarded $808,564.38 in damages by the Supreme Court of New South Wales. This outcome was upheld on appeal and confirmed by the High Court. 

Consent discussions should be personal to each patient.  Each patient may value different information. 

Use both the objective and subjective tests when discussing risks: 

• The objective test asks what a reasonable person in the patient’s position would want to know. 
• The subjective test considers what the specific patient would want to know, based on what you learn about them through conversation and history. 

Asking your patient specifically “is there anything in particular you are concerned about” will put you in a better position to address risks material for them. Make sure you understand the patient’s goals, concerns and how they might manage different outcomes.   

Document your discussion, including what questions the patient asked and the information you provided.  

Avant factsheet – Consent: the essentials 

For medico-legal advice, please contact us here, or call 1800 128 268, 24/7 in emergencies.