Evidence mounts for a legal duty to disclose performance data as part of informed consent
Hospitals, colleges and other institutions increasingly collect, analyse and disseminate data relating to the performance of individual health practitioners, particularly those undertaking surgical procedures. Arguments have long been made for an ethical duty to disclose information regarding a practitioner’s experience or skill to patients as part of the process of informed consent (Box 1).1 Significantly, recent developments suggest that practitioners may, in some circumstances, have a legal duty to disclose their performance data to patients (Box 2).
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- 1. Clarke S, Oakley J. Informed consent and surgeons’ performance. J Med Philos 2004; 29: 11-35.
- 2. Chappel v Hart (1998) 195 CLR 232.
- 3. Brus v Australian Capital Territory [2007] ACTSC 83.
- 4. G & C v Down [2008] SADC 135.
- 5. Morocz v Marshman [2015] NSWSC 325.
- 6. Civil Law (Wrongs) Act 2002 (ACT); Civil Liability Act 2002 (NSW); Personal Injuries (Liabilities and Damages) Act 2003 (NT); Civil Liability Act 2003 (Qld); Civil Liability Act 1936 (SA); Civil Liability Act 2002 (Tas); Wrongs Act 1958 (Vic); Civil Liability Act 2002 (WA).
- 7. Ipp DA, Cane P, Sheldon D, Macintosh I. Review of the law of negligence: final report. Canberra: Commonwealth of Australia, 2002.
- 8. Rogers v Whitaker (1992) 175 CLR 479.
- 9. F v R (1983) 33 SASR 189.
- 10. Rosenberg v Percival (2001) 205 CLR 434.
- 11. Brown DL, Clarke S, Oakley J. Cardiac surgeon report cards, referral for cardiac surgery, and the ethical responsibilities of cardiologists. J Am Coll Cardiol 2012; 59: 2378-2382.
- 12. Radford PD, Derbyshire LF, Shalhoub J, Fitzgerald JEF. Publication of surgeon specific outcome data: a review of implementation, controversies and the potential impact on surgical training. Int J Surg 2015; 13: 211-216.
- 13. Royal Australasian College of Surgeons. Australian and New Zealand audit of surgical mortality: national report 2014. Adelaide: RACS, 2014. http://www.surgeons.org/media/22243780/2015-11-23_rpt_anzasm_report_2014.pdf (accessed June 2017).
- 14. Medical Board of Australia. Guidelines for registered medical practitioners who perform cosmetic medical and surgical procedures. 1 October 2016. http://www.medicalboard.gov.au/News/2016-05-09-media-statement.aspx (accessed June 2017).
I am grateful to Bill Madden for his comments on earlier drafts of this article.
No relevant disclosures.