Why is consent important?

The area of law studied in this chapter is an area of civil law which relates to a trio of civil wrongs or torts which fall under the collective heading of trespass to the person. These torts, which are divided into assault, battery and false imprisonment, exist to protect people’s ‘personal space’. However, for nurses, this topic is often referred to as ‘consent’ because it is the consent aspect of the law which is more readily identified as relevant to people working in the health area. In fact, to put consent to treatment into its proper legal perspective, the consent is in reality a defence to actions in assault, battery or false imprisonment, which explains why it becomes so important to healthcare professionals in their daily work.

The principles covering this area of the law are based on common-law principles, which have been extended by individual state or territory legislation in some areas, particularly in relation to children.

Negligence must be distinguished

Any consideration of the absence or otherwise of consent to treatment must not be confused with negligence. In other words, negligence and assault and battery are two distinct and separate civil wrongs and it is not necessary for a negligent act to precede a battery in order for a civil action alleging battery to succeed. As far as any treatment given to a patient is concerned, it is quite possible that such treatment was competently given, that the patient suffered no harm and recovered completely, yet the patient can still succeed in an action in battery if he or she has not consented to the treatment given. It is the fact that the specific type of ‘touching’ which occurred did so without the patient’s consent that means that a battery has occurred.

The main reason why patients undergo any form of medical treatment is their belief that their condition will be improved or at least palliated by the treatment given. Reality reveals that normally, if their condition is improved, most patients are happy to let the situation rest even if they did not know the precise details of what had happened to them or even if their treatment was slightly different to that which they had anticipated. An exception to this is where treatment may be given in disregard of a person’s moral or religious convictions; for example, if a Jehovah’s Witness were to receive a blood transfusion. Even if the outcome were successful, the patient may still feel deeply aggrieved.³

However, as a general rule, it is when something goes wrong and patients suffer damage as a result of their treatment that they start to seek further explanations and information. On occasions, something may have gone wrong because a person has not exercised adequate care and an action in negligence may be a possible outcome. On other occasions all the most prudent precautions and competence will still not prevent unforeseen problems arising. Nevertheless, when something does go wrong, invariably the patient will want to know what happened, why, who did what and when, or perhaps whether anyone failed to do something. Depending on the facts and circumstances, and more often than not influenced by the degree of damage that has occurred and the way in which the adverse event was managed, the patient will seek legal advice about the likelihood of making a complaint and/or suing the doctor, hospital and any other parties the patient feels may have been responsible for the damage that has occurred. When that happens the legal action that may be contemplated will generally revolve around three potential considerations:

Where the two potential causes of action of negligence and battery often overlap, and therefore can confuse the layperson, is what is often described (erroneously) as informed consent. For legal purposes, there are two distinct areas of law in play here. The question of adequately informing a patient in ‘broad terms of the nature of the procedure which is intended’ is critical to the issue of obtaining a valid consent as a defence to an action in battery.⁴ However, the failure of a medical practitioner to inform a patient adequately about the treatment he or she is to undergo, particularly the material risks involved and likely outcome of any proposed treatment, can and has been determined by the courts to be negligence.⁵ In other words, such a failure will, more often than not, be deemed to be a breach of the doctor’s duty of disclosure, as part of his or her duty of care to the patient. That important distinction, together with the relevant cases and the views expressed by the courts, is set out in Chapter 3, Negligence and Vicarious Liability.

Remember that, in any allegation of negligence, the patient must prove all the necessary elements, including the fact that they have suffered some form of recognisable damage. As far as any action in battery is concerned, the patient does not have to prove damage, but rather an intentional touching and the absence of consent to the treatment given. The amount of compensation awarded by a court in such a situation may be nominal when compared to the compensation awarded if the patient were damaged and could prove negligence. Nevertheless, it is possible for a patient to bring an action seeking compensation for battery in the absence of any negligence on the part of the person concerned and solely on the basis that consent was not given to the type of touching which occurred. A case precisely on this point was the Canadian case of Malette v Shulman et al. which was decided in 1991.⁶ Although the decisions of Canadian courts are not binding on Australian courts they would be considered to be persuasive precedent. The case is particularly interesting because it demonstrates the distinction between an action in negligence and battery and at the same time it reinforces the right of a person to withhold consent to treatment — in this case a blood transfusion. The relevant facts of the matter are set out below.

Mrs Malette was seriously injured in a motor vehicle accident in which her husband was killed. She was taken by ambulance to hospital. She had severe head and facial injuries and was bleeding profusely. She was initially transfused with intravenous glucose and Ringers Lactate. On admission a nurse discovered a card in Mrs Malette’s purse, which identified her as a Jehovah’s Witness, and in which she requested, on the basis of her religious convictions, that she be given no blood transfusions under any circumstances. The nurse advised Dr Shulman, the doctor on duty, of the existence of the card and its contents.

Shortly after admission Mrs Malette’s condition deteriorated sharply and she was critically ill. Dr Shulman decided that a blood transfusion was necessary to replace Mrs Malette’s lost blood and preserve her life and health. He personally administered blood transfusions to her despite the directions on the card found in her purse and a request by Mrs Malette’s daughter, who had subsequently arrived at the hospital, that the transfusions be discontinued. When Mrs Malette recovered from her injuries she sued Dr Shulman for battery on the basis that she had specifically withheld her consent to blood transfusions as evidenced by the card in her purse, and in treating her contrary to that express request Dr Shulman had committed a battery. Mrs Malette’s action against Dr Shulman was in no way undermined by the fact that Dr Shulman had not been negligent in any way. Indeed as the judgment states:

Despite the above comments the court upheld Mrs Malette’s claim against Dr Shulman on the basis that he had violated Mrs Malette’s ‘rights over her own body by acting contrary to the Jehovah’s Witness card and administering blood transfusions that were not authorised’.⁸ The court awarded Mrs Malette $20 000 damages but declined to make any award of costs — in other words, Mrs Malette would have had to pay her own legal costs out of the damages awarded. Compared with the amount of damages awarded by courts today for negligence actions, Mrs Malette’s damages of $20 000 for battery would certainly be considered nominal, particularly as she had to pay her own legal costs. There are a number of more recent cases involving blood transfusions and Jehovah’s Witnesses, and not all the decisions are as clear cut as this one.⁹ However, Malette v Shulman does provide a clear example of what the tort of battery is intended to do, which is to uphold the right of individuals to control what happens to their own body.

What information is available to help professionals and patients?

Clearly these matters are extremely complex and there are many useful documents available to assist healthcare professionals and consumers alike both to understand the law and to provide the best available information and practices. For healthcare practitioners, there is a range of useful information. For example, the National Health and Medical Research Council (NHMRC) has recently updated its General Guidelines for Medical Practitioners on Providing Information to Patients.¹⁰ They have also produced a companion document Communicating With Patients: advice for medical practitioners. Although these documents inexplicably only refer to the information and communication practices of medical practitioners, they will be of equal value for nurses and allied health practitioners who provide information about treatment and care for patients. State and territory governments also produce comprehensive policy documents relating to consent for medical treatment. Two recently updated policy examples (NSW, 2005 and WA, 2006) are provided in the endnotes, both of which are extremely comprehensive and a valuable resource for any healthcare professional who wishes to understand not only the law, but also how the law operates in practice.¹¹ In addition, there are many useful consumer information documents — some developed by government and others developed by consumer organisations. The Consumers’ Health Forum of Australia (CHF) recommends a simple decision-making model which identifies that consumers need information about options, outcomes and incidence. These are defined as follows:

How may consent be given?

It is helpful to remember that the word consent comes from the Latin consensere, meaning to agree. Thus, consent is an agreement between two parties, and requires a level of common understanding. When considering the question of consent, it is generally stated that it is necessary for a patient to give a valid consent. The use of the term ‘valid consent’ simply denotes the necessity to ensure that any consent that is given comprises certain elements, otherwise the consent will be invalid. The elements that comprise a valid consent apply regardless of the way in which consent is given. The ways in which consent can be given are:

impliedly

verbally

in writing.

Implied consent to treatment can be given in a variety of ways and is most often used as the method of giving consent to a simple procedure of common knowledge. For example, a nurse might request a patient to hold out his or her arm for an injection or to roll over preparatory to being given an injection in the thigh and the patient’s compliance with such a request would normally imply consent to that treatment. Even though a patient may appear to be implying consent for the intended procedure by their actions, it is good practice to explain fully to the patient what you are going to do, regardless of any behaviour that may imply consent. In addition, the element of common knowledge means that it is not sufficient to make the claim that a person has given consent to a treatment ‘simply by turning up at the hospital’. In the 1984 deep sleep therapy (DST) case of Hart v Herron, the Supreme Court held that turning up at the hospital was not sufficient to imply consent for treatment, and the defendant in this case was found to be liable in battery for administering the DST.¹³ DST does not constitute a simple procedure of common knowledge. Quite clearly it is not possible to consent to a procedure about which you have neither knowledge nor understanding, as a person cannot agree to that which they have not contemplated.

Verbal consent is probably the most common form of consent occurring in relation to simple procedures both in hospitals and health centres. For example, in both hospitals and the community in the great majority of cases a conversation takes place between the doctor and the patient concerning the patient’s condition and/or medical history. The conversation is usually accompanied by a medical examination and/or some preliminary tests. At the conclusion of the conversation the medical practitioner will advise the patient about his or her diagnosed or potential condition, describe what treatment (s)he thinks the patient should have, what medication should be taken and/or whether admission to hospital or other treatment is required. Almost inevitably the patient accepts the doctor’s advice and agrees (that is, consents) to undergo the treatment suggested by the doctor. What is happening, of course, is that the patient is verbally consenting to treatment. No form has been signed, nor need it be when consent is given in such circumstances. In saying that, it must be recognised that a verbal consent forms the basis of the third way in which consent may be given; that is, the written consent.

A consent in writing, in the form of either a standard or specialised written consent form, is generally nothing more than documentary evidence of what has already been consented to verbally by the patient. In many ways the function served by a written consent form parallels the function of a contract reduced to writing. It is quite possible to create a legally binding contract between two parties by verbal agreement without recourse to a document, as long as the elements of a simple contract exist. In general terms, therefore, the main function that a written consent fulfils is to express in writing what has been verbally agreed to between the parties. There is no general legal principle that states that consent forms must exist and be signed before a patient can be treated, although there are now a number of situations where either law or policy requires consent in writing. For example, the Western Australian (WA) Department of Health Office of Safety & Quality in Health Care in the Consent to Treatment Policy for the WA Health System requires written consent in the following situations:

However, the one thing that the written consent form does is to provide, on the face of it, documentary evidence that consent was given should a dispute arise over that point. A written consent in no way guarantees that the consent given is a valid one — that is another issue completely. It is true to say that a consent form is only as good or as valid as the quality of the consent or agreement it represents.

What are the elements of a valid consent?

The validity of any consent, however given, will only be satisfied if the three elements that constitute a valid consent are present. Those elements are:

That any consent given is freely and voluntarily given

What is meant here is that any consent given by a patient must be given without any fraud, duress or coercion being applied by the medical practitioner or other member of staff in order to obtain the patient’s consent. As a general rule, medical and nursing staff do not deliberately seek to apply fraudulent or coercive measures on patients to obtain their consent, but can do so unwittingly in a variety of ways. For example:

if a medical practitioner or a nurse advises a patient that he or she must have a particular form of treatment or else he or she will be discharged

the authoritative role of the medical practitioner may introduce an element of coercion into the consent procedure on the basis of ‘I know what’s best for you’

if it can be established that any coercion or duress was brought to bear on a patient in order to obtain his or her consent, that consent will be invalid.

However, on occasions nurses have been involved in deceptions to obtain consent, as shown in the Royal Commission into Deep Sleep Therapy, which investigated the practices of a psychiatrist and his colleagues who admitted mentally ill patients to a private hospital (Chelmsford) and gave them the ‘special treatment’ of barbiturate induced coma and sometimes adjuvant electroconvulsive therapy. Over the ensuing sixteen years until 1979, at least 24 people died as a direct result of the DST. This excerpt from the testimony of one nurse gives an example of how deception was used to implement the DST.

Some who did know, if they refused to sign the consent form, then the instruction was that you gave them some medication to quieten them down; that’s what you would say, ‘I’ll give you this little injection now, it will calm you down. You will feel a lot better after it’. But of course that little injection was Sodium Amytal and I think some Valium as well and then of course they were off on the sedation.¹⁵

Whilst no action was taken against any nurses as a result of the events at Chelmsford, this excerpt provides a clear example of how deception might be employed to obtain consent to treatment. Such behaviour is clearly not acceptable and would negate consent.

That the patient is informed ‘in broad terms of the nature of the procedure which is intended’¹⁶

It is this element that probably gives the greatest concern to nursing staff, largely because of the problems that arise in relation to written consent forms. From a strict legal perspective the term ‘informed consent’, that can be traced to early American decisions,¹⁷ is no longer considered to be appropriate, confusing as it does the requirement for consent in defence to actions in battery and the requirements for information-giving about material risks, the absence of which forms one of the elements of an action in negligence. However, in reality, people need not only to be informed in broad terms, (thus providing a defence against an action in battery) but also to be informed about the material risks (thus providing a defence against a potential action in negligence).

Perhaps a helpful way to think about the issue is to consider the concept of information-giving (and ‘informed consent’) in general everyday terms. On a day-to-day basis people make decisions on a whole variety of issues which affect their daily lives — whether it be to buy a house or a new car, take an overseas holiday or change jobs. In making a decision on such issues, people obtain relevant information which will help them to decide whether or not to go ahead with a particular proposal; for example, cost, finance available, repayments, access to public transport and schools, career opportunities and so on. A person will then assess the various alternatives available before coming to a final decision on the matter. In other words it is the gathering together of the information needed in order to arrive at the most appropriate decision that constitutes the informed element of the consent process. It is much the same situation when considering whether or not to consent to a particular medical treatment. Obviously the consequences of making a decision about healthcare are far more serious than deciding whether or not to buy a new car, thereby only increasing the need for information and care. Nevertheless, the principle is the same.

In Australia two questions arise from the fact that information must be given to a patient when he or she is being asked to consent to a treatment:

1. How much information does the patient require to make a decision to consent to treatment?

2. Who is responsible for giving sufficient information to a patient?

How much information does the patient require to make a decision to consent to treatment?

At this point it is necessary to restate that, invariably, when this issue is considered it is done within the context of negligence, having regard to the perceived duty of the doctor to inform the patient adequately about the material risks inherent in any proposed treatment, and readers should refer to the cases on this issue in Chapter 3, Negligence and Vicarious Liability. That is not to suggest that an action in battery cannot or should not be pursued. It simply reflects the views expressed by the courts in Australia and elsewhere, particularly in England, on this issue. Indeed the decision of the High Court of Australia in Rogers v Whitaker makes it quite clear that actions against medical practitioners alleging inadequacy of information about a proposed treatment should properly be considered as part of the medical practitioner’s duty of care within the context of an action in negligence.¹⁸ The facts of Rogers v Whitaker are set out in Chapter 3, and should be referred to. The facts reveal that Mrs Whitaker received precisely the treatment to which she had consented, thus there could be no successful action in battery. In unanimously dismissing Dr Rogers’ appeal the High Court made the following comment on the issue of informed consent:

… In this context nothing is to be gained by reiterating the expressions used in American authorities such as ‘the patient’s right of self-determination’ or even the oft-used and somewhat amorphous phrase ‘informed consent’. The right of self-determination is an expression which is, perhaps, suitable to cases where the issue is whether a person has agreed to the general surgical procedure or treatment, but is of little assistance in the balancing process that is involved in the determination of whether there has been a breach of the duty of disclosure. Likewise, the phrase ‘informed consent’ is apt to mislead as it suggests a test of the validity of the patient’s consent. Moreover consent is relevant to actions framed in trespass, not in negligence. Anglo-Australian law has rightly taken the view that an allegation that the risks inherent in a medical procedure have not been disclosed to the patient can only be found an action of negligence and not in trespass; the consent necessary to negative the offence of battery is satisfied by the patient being advised in broad terms of the nature of the procedure to be performed.¹⁹ [emphasis added]

In 2004 the National Health and Medical Research Council (NHMRC) updated its General Guidelines for Medical Practitioners on Providing Advice to Patients.²⁰ The advice reads as follows:

INFORMATION TO BE GIVEN

Doctors should normally discuss the following information with their patients:

the possible or likely nature of the illness or disease;

the proposed approach to investigation, diagnosis and treatment:

– what the proposed approach entails — the expected benefits

– common side effects and material risks of any intervention

– whether the intervention is conventional or experimental

– who will undertake the intervention

other options for investigation, diagnosis and treatment;

the degree of uncertainty of any diagnosis arrived at;

the degree of uncertainty about the therapeutic outcome;

the likely consequences of not choosing the proposed diagnostic procedure or treatment, or of not having any procedure or treatment at all;

any significant long term physical, emotional, mental, social, sexual, or other outcome which may be associated with a proposed intervention;

the time involved; and the costs involved, including out of pocket costs.

1. INFORMING PATIENTS OF RISKS

Doctors should give information about the risks of any intervention, especially those that are likely to influence the patient’s decisions. Known risks should be disclosed when an adverse outcome is common even though the detriment is slight, or when an adverse outcome is severe even though its occurrence is rare. A doctor’s judgement about how to convey risks will be influenced by:

the seriousness of the patient’s condition; for example, the manner of giving information might need to be modified if the patient were too ill or badly injured to digest a detailed explanation;

the nature of the intervention; for example, whether it is complex or straightforward, or whether it is necessary or purely discretionary. Complex interventions require more information, as do interventions where the patient has no illness;

the likelihood of harm and the degree of possible harm — more information is required the greater the risk of harm and the more serious it is likely to be;

the questions the patient asks; when giving information, doctors should encourage the patient to ask questions and should answer them as fully as possible. Such questions will help the doctor to find out what is important to the patient;

the patient’s temperament, attitude and level of understanding; every patient is entitled to information, but these characteristics may provide guidance to the form it takes; and

current accepted medical practice.

2. PRESENTING INFORMATION

The way the doctor gives information should help a patient understand the illness, management options, and the reasons for any intervention. It may sometimes be helpful to convey information in more than one session. The doctor should:

communicate information and opinions in a form the patient should be able to understand;

allow the patient sufficient time to make a decision. The patient should be encouraged to reflect on opinions, ask more questions, consult with the family, a friend or advisor. The patient should be assisted in seeking other medical opinion where this is requested;

repeat key information to help the patient understand and remember it;

give written information or use diagrams, where appropriate, in addition to talking to the patient;

pay careful attention to the patient’s responses to help identify what has or has not been understood; and

use a competent interpreter when the patient is not fluent in English.

3. WITHHOLDING INFORMATION

Information should be withheld in very limited circumstances only:

if the doctor judges on reasonable grounds that the patient’s physical or mental health might be seriously harmed by the information; or

if the patient expressly directs the doctor to make the decisions, and does not want the offered information. Even in this case, the doctor should give the patient basic information about the illness and the proposed intervention.²¹

Having regard to all of the above, the issue of how much information a person requires to decide to consent to treatment can be summarised as follows:

the information element of a valid consent is the gathering together of the information needed to allow a patient to arrive at a decision that the patient believes is in his or her own best interests;

if there were to be any statement of general legal propositions applicable in Australia, it would be that, in obtaining a valid consent, a patient must be given sufficient information to be able to understand the nature and consequences of the proposed treatment; and

failure to advise and inform a patient properly about the nature and consequences of the proposed treatment as well as its material risks would, in most instances, amount to a breach of the doctor’s duty of care, which could, should damage ensue, make the doctor liable in negligence, quite apart from any action in battery.

Who is responsible for giving sufficient information to a patient?

At first glance there would be no doubt that the responsibility for giving the patient sufficient information to enable the patient to make an informed decision rests with the primary treating health practitioner. In some situations where no doctor is involved, the responsibility would rest with the person in charge of the case. For example, in the case of a homebirth conducted by a homebirth midwife with no obstetrician involved, the responsibility for giving the patient sufficient and relevant information rests with the midwife. Likewise, where the treating health practitioner was a nurse practitioner, the primary responsibility would rest with the nurse practitioner. This situation has been recognised in policy. For example, the NSW Policy Directive PD2005_406 states that:

… authorised nurse practitioners may initiate medications, order diagnostic tests and make referrals only when they are operating under guidelines approved by the Director-General. Nurse practitioners have the same obligations as do medical practitioners, when obtaining consent for the procedures which they are authorised to perform.²²

Until recently, the usual situation encountered in hospitals and health centres would be that the treating doctor would carry responsibility for informing the patient about the treatment he or she has consented to undergo. Two questions are regularly raised by nursing staff in relation to this:

1. What is the scope of responsibility for a nurse (or other health employee) who is asked to obtain a patient’s signature to a consent form?

2. What are the professional responsibilities of nurses to inform patients of aspects of their treatment if they believe they have not been fully explained by the treating doctor. Alternatively, what are the nurses’ professional responsibilities when a patient asks the nurse for advice about the treatment he or she is having. These professional dilemmas often arise in relation to treatments which patients undergo on the advice of their treating doctor in terminal illnesses; for example, chemotherapy, radiotherapy and radical surgery.

Both of these issues will now be examined.

Written consent forms

For many years hospitals insisted that nurses were responsible for obtaining a patient’s signature on consent forms. It is pleasing to note that key policy documents have now taken that responsibility from nursing staff and placed it where it rightfully belongs — with the medical officer or other treating practitioner concerned.

Legally any person over the age of 18 years and of sound mind may witness a patient’s signature on a consent form. This argument is the one most often raised by medical practitioners, who state that they should not be required to witness a patient’s signature on a consent form because it can legally be done by any member of staff. While that comment may be correct, it does nothing to address the concerns often raised by nursing staff about witnessing the consent form. Also it has to be remembered that if the patient has agreed to come into hospital for treatment it is usually on the basis of the advice of the medical practitioner. Therefore, as a matter of commonsense and good practice, it is the medical practitioner who should witness the patient’s written consent to that treatment.

As a matter of administrative policy and effective use of nursing time, nursing staff should not be required to be responsible for obtaining a patient’s signature on a consent form. That should clearly be the responsibility of the treating doctor. In those hospitals where such a task is still designated to the nursing staff the only role that the nurse plays in obtaining the patient’s signature is to witness that signature. Witnessing a patient’s signature in no way imposes on the nurse a responsibility for informing the patient of the nature and extent of the procedure to which the patient is consenting. If a nurse is required to ask a patient to sign a consent form, the nurse should observe the following steps.

Always ensure that the consent form is completely filled in. A patient should never be asked to sign a blank consent form.

If a patient wishes to alter the consent form in any way by adding or crossing out words, then the nurse must advise the treating doctor as soon as possible.

If a patient starts to ask the nurse questions concerning the nature and extent of the procedure to which the patient is consenting, the nurse should offer to ask the patient’s treating doctor to come and talk to the patient. In contacting the treating doctor, the nurse should make a relevant entry in the patient’s records, as well as noting the doctor’s response to the request.

If a patient refuses to sign a consent form, the treating doctor must be advised and a relevant entry made in the patient’s record. In a hospital, the appropriate administrative personnel should also be advised.

Finally, nurses should remember that a signed written consent form in no way guarantees that the consent is a valid one. To determine that, it is necessary to ensure that all the principles of a valid consent were present when the agreement was reached as to the nature and extent of the treatment to be undergone. In other words, the mere mechanical signing of a standard form of consent at the request of a member of the hospital staff is, by itself, of limited value. What is important is that the patient has adequate information and advice so that there is a genuine understanding of the nature of the treatment and the significant risks inherent in it, and has agreed to the treatment on that basis.

The professional responsibility to inform

Nursing staff do have a professional responsibility to educate patients and to provide secondary information about a particular treatment once the course of treatment has been agreed upon. Nursing staff are often questioned by patients about the treatment they are undergoing. They are the most frequent source of contact and conversation in a hospital and patients often relate more readily to the nursing staff for that reason. It is completely appropriate for nursing staff to provide the best advice and information available and to answer patients’ questions honestly and helpfully in relation to the agreed treatment, and significant advantages are known to attach to the provision of pre-operative information.²³ However, there have been occasions where nurses have found themselves in the difficult position of caring for a patient who, they believe, has not received sufficient information concerning the particular treatment he or she is undergoing or the alternative courses of treatment which may be available to the patient. The most frequent problem has been in relation to the treatment of patients for various types of cancer, which quite often involves the administration of large doses of cytotoxic drugs and radiotherapy. This type of treatment sometimes results in physically and mentally distressing side effects for the patient which, if the patient’s life expectancy is quite limited, can cause nurses to question the efficacy of the treatment. In such a situation the nurse must carefully assess his or her professional position before seeking to intrude on the patient–doctor relationship.

There have been occasions where nursing staff have become concerned and openly critical about the standard of care being practised by a nursing or medical colleague. The problem becomes particularly difficult when the criticism is directed at a medical practitioner who the nursing staff believe is giving unsafe and/or inappropriate medical care to a patient.

If a member of the nursing staff is genuinely concerned about the standard of care being delivered by a nursing or medical colleague, that concern should first, as a matter of courtesy and commonsense, be dealt with by discussing it directly with the doctor or colleague involved. If those direct discussions do not resolve the problem it should then be expressed formally to the appropriate administrative personnel. Sometimes, a nurse may feel unable to initiate such a conversation, and if they are genuinely concerned about a matter of safety, it is imperative that they discuss the matter with more senior nursing staff who could take the matter up on their behalf. However, it is important that the concerned person has clear information and evidence to support their concern. It may be that the matter can be resolved at that level by discussions between the parties concerned.

If such an approach is unsuccessful and the criticisms expressed are valid, then the administrative or more senior nursing personnel have the obligation to pursue and deal with the matter via the appropriate channels. In doing so, criticisms that form the subject of the complaint should be supported by objective and factual documentation. At no time should such professional criticisms become the subject of general gossip, particularly outside the hospital where some people may be only too ready to believe such criticisms. If this happens, then that person’s professional reputation may be irreparably damaged and the person would have legitimate resort to an action in defamation.

In recent years, there has been a greater emphasis on a systems approach to problems and errors in healthcare. Human beings make mistakes²⁴ and healthcare professionals are no exception.²⁵ The aviation industry has already undertaken a considerable amount of work and has developed the concept of crew resource management, which creates the imperative for each member of the aviation team to speak out forcefully if they believe that there is any problem.²⁶ This work is being replicated in the healthcare sector and there is a prevailing view that all healthcare professionals have a responsibility to speak up (appropriately, as discussed above) to avoid adverse incidents occurring and to report adverse events so that analysis can occur and preventative strategies can be implemented. A strategy for helping those staff who may feel unable to speak out about healthcare concerns is known as graded assertiveness. The Victorian Government has produced a useful presentation to identify how healthcare professionals can use the technique of graded assertiveness to raise questions of concern. They identify a relational matrix (Figure 4.1) and a range of valuable strategies in relation to assessing and implementing assertive behaviours.²⁷

FIGURE 4.1 Relational matrix for graded assertiveness

Therapeutic privilege

There are some limited situations where the law will recognise that, although there may well be a general duty to disclose what is reasonable and necessary in the circumstances, an exception can arise. The usual situation is where the treating doctor elects to use what is termed therapeutic privilege; that is, the doctor chooses not to disclose information to a patient that he or she believes would be detrimental to the patient’s best interest, generally for mental health reasons.

As the general guidelines issued by the National Health and Medical Research Council (NHMRC) state, significant information should not be withheld except in the very limited circumstances referred to in the guidelines, namely:

if the doctor judges on reasonable grounds that the patient’s physical or mental health might be seriously harmed by the information; or

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