The Cases of Rogers v. Whitaker and Chappel v. Hart

The High Court judgement on informed consent in the case of Rogers v. Whitaker
By Dr Paul Nisselle, Australasian Secretary Medical Indemnity Protection Society

“A doctor has a duty to warn a patient of a material risk inherent in a 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 med- ical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it.”

That was the essence of a High Court judgement, handed down on November 19, 1992, which irrevocably altered medical practice in Australia. The High Court dismissed an Appeal brought by a Sydney ophthalmologist against an award made against him by a patient blinded by sympathetic ophthalmia occurring in the opposite eye to the one treated. The details of the case are now unimportant, but ultimately the patient succeeded on only one item of negli- gence, that is, failure to warn of a risk which was stated to occur in one in 14,000 cases. 

Until now, both for treatment and for the consent process, the courts in Australia followed a 1957 English House of Lords precedent, generally accepting the "reasonable doctor" standard. In that tradition, whilst the court would specify that a doctor did have a duty of care to his or her patient, the content of that duty of care would be determined by reference to current accepted medical practice. Thus the law would turn to medicine to inform it what a "reasonable doctor" in the position of the doctor treating that patient would have done. In 1983, Chief Justice King, in a South Australian case, did signal a differing view when he said:
"The ultimate question, however, is not whether the defendant's conduct accords with the practices of his profession or some part of it, but whether it conforms to the standard of reasonable care demanded by the law. That is a question for the court, and the duty of deciding it cannot be delegated to any profession or group in the community." 

In the Rogers v. Whitaker Australian High Court judgement, the Justices spoke about the patient's paramount "right of self determination". They preferred this term to the "oft used and somewhat amorphous phrase ('informed consent')". 

The High Court decision continued: "King C J considered that the amount of information or advice which a careful and responsible doctor would disclose depended upon a complex of factors: 

• the nature of the matter to be disclosed;
• the nature of the treatment; 
• the desire of the patient for information; 
• the temperament and health of the patient; 
• and the general surrounding circumstances.

The High Court acknowledged that it could not stand in the shoes of the doctor in determining technical issues of medical care, but it could stand in the shoes of the patient, and decide how much information should have been conveyed to the patient to preserve the patient’s rights of self determination. Thus, the High Court said that when considering the need to inform of any particular risk, there are two separate tests:
1. Whether a reasonable person in the patient's position would be likely to attach significance to the risk; and
2. Whether the medical practitioner is or should be reasonably aware that the particular patient would be likely to attach significance to that risk.
Immediately we are in a quandary. Are these two tests to be applied together or alternatively? There is, of course, a major difference.
The first test is a general test. That is, if you say that a reasonable person would be likely to attach significance to the risk, then you are saying that the risk should be drawn to the attention of every patient. If the second test could be applied in the alternative, then you would be entitled to make a decision based on an assessment of the individual patient's needs or wishes for information. However, the only logical conclusion is that the tests are additive, not alternative.
Indeed, there are three tests to be satisfied whenever doctors advise patients:
1. The reasonable patient test — the information which any reasonable person in the position of the patient would think relevant to his or her decision-making.
2. The reasonable doctor test — the additional information which any doctor would know, or should know, would additionally be relevant to this particular patient (for example, stressing the sedative side effects of some medications if the patient is a taxi or truck driver, or whose work involves using dangerous machinery).
3. The individual patient test — any other information requested by the patient (and the patient should be offered the opportunity to seek any other information by being asked questions such as “Is there anything you don’t understand?” or “Is there anything else you’d like to know?”

Download the complete High Court judgement of Rogers v Whitaker that altered healthcare practice in Australia. With comment and analysis by Dr Paul Nisselle, former AMA (Vic) president and Australasian Secretary of MIPS, and currently, Senior Consultant, Medical Protection Society, UK. The High Court case of Chappel v Hart considered related issues.