Bill Madden: Need-to-know basis

HOW will the law respond to recently suggested moves away from doctors being proactive in suggesting prostate cancer screening?

In particular, how will it respond to the suggestion that only patients who ask need to be informed of their options?

In the latest editions of the RACGP Guidelines for preventive activities in general practice 8th edition (the Red Book) it says: “Routine screening for prostate cancer with DRE [digital rectal examination], PSA [prostate specific antigen] or trans-abdominal ultrasound is not recommended … GPs need not raise this issue, but if men ask about prostate screening they need to be fully informed of the potential benefits, risks and uncertainties of prostate cancer testing.”

The law, through a 1992 High Court judgment, imposes on a medical practitioner no more of a duty than to exercise reasonable care and skill in the provision of professional advice and treatment.

Legal reforms dating back about 10 years have reinforced this approach by creating a defence for medical practitioners. The wording varies in the various states, but using NSW legislation, a medical practitioner does not incur a liability in negligence arising from the provision of a professional service if it is established that the practitioner acted in a manner that, at the time the service was provided, was widely accepted in Australia by peer professional opinion as competent professional practice.

In theory then, the approach by the courts should be consistent with medical practice. But where does that leave us, when, in discussing prostate cancer screening, the Red Book also concedes that the practice remains “controversial”, that the “medical community remains divided on the issues” and “it is unclear whether the advantages of screening outweigh the harms”?

The courts can disagree with peer medical opinion if the court considers that the opinion is irrational — not “irrational” in a psychiatric sense, but rather where the opinion supports the taking of a risk of causing grave danger, which could have been easily and inexpensively avoided.

Lawyers may feel uneasy at this point, as arguably a PSA test with DRE would fall into the easy and inexpensive category. So might it be “irrational” not to offer such screening?

The new Red Book approach also seems to lean too far towards a paternalistic decision, rather than a respect for patient autonomy, in saying that a medical practitioner “need not raise the issue with every eligible man, but wait until you are asked about screening”.

Put bluntly, why is it only the patient who knows enough to ask the question, who then has the “right” to make his own decision?

Mr Bill Madden is the National Practice Group Leader, Medical Law, with Slater & Gordon.

Posted 5 November 2012

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