Ideal practice or reasonable practice?

Sharon Keeling

Health Care providers may be concerned about being sued for not offering every possible intervention or treatment.

Is the required standard of care reasonable practice or ideal practice?

How is the line between ideal and reasonable practice determined?

An approach to a patient who refuses medical advice will be discussed.

Magna Carta

Charter agreed by King John of England at Runnymede, near Windsor, on 15 June 1215

‘lawful judgement of his peers or the law of the land’

“Bolam rule” by McNair J in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582

‘a doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art … merely because there is a body of opinion that would take a contrary view’.

The law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment. That duty is a "single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgment"; it extends to the examination, diagnosis and treatment of the patient and the provision of information in an appropriate case. It is of course necessary to give content to the duty in the given case.

The standard of reasonable care and skill required is that of the ordinary skilled person exercising and professing to have that special skill …

Rogers v Whitaker (1992) 175 CLR 479

‘mean that medical opinions would determine whether risks of treatment should or should not be disclosed, rather than the express desire of a patient seeking such information or advice.’

Rogers v Whitaker (1992) 175 CLR 479 regarding warnings of risk

The enquiry as to what was reasonable care and skill is not to be undertaken in hindsight: Neindorf v Junkovic (2005) 80 ALJR 341 at [93].

Mills v Lee [2006] NSWSC 1031 per Hislop J

‘In considering each of these matters it must be borne in mind that the standard of care resting on the defendants was one of reasonableness, not perfection; the standard of reasonable care was to be judged against the state of medical knowledge and practice in June / July 1983 …’

Prosser v Eagle [2002] NSWSC 256 at [148]

‘… I got the impression that he was advocating the ideal way of dealing with the patient in view of what he had learned from examination of the x-rays taken 6 months later. That however is not the standard. Dr Eagle is to be judged, not by the standard of a professor of obstetrics and gynaecology teaching his students the ideal standard they should seek to attain but as a general practitioner with a Diploma in Obstetrics, without the benefit of hindsight by reference to the x-rays which were ultimately taken six months later.’

Mills v Bale [2010] NSWDC 162

At 676 ‘… the need to avoid the application of a hindsight standard driven by a counsel of perfection …’

Grinham v Tabro Meats Pty Ltd [2012] VSC 491

At [152] ‘it needs to be borne in mind that in assessing the reasonableness of her actions there is the plain fact that Mr Grinham was one of many patients, each of whom was entitled to the exercise of reasonable, but not perfect, care.’

At [153] ‘needs to be viewed in context of a general practitioner’s consultation and in the clinical setting.’

Grinham v Tabro Meats Pty Ltd [2012] VSC 491

At [154] ‘It is, in my opinion, a counsel of perfection to suggest that Dr Murray should have done any more than that which she did.’

At [166] ‘the legal test is one of what was reasonable in the circumstances, not what might be the perfect medical practice, particularly when viewed with the advantage of hindsight.’

s.59 Standard of care for professionals

(1) A professional is not negligent in providing a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by a significant number of respected practitioners in the field (peer professional opinion) as competent professional practice in the circumstances.

Duty of care defined in the Wrongs Act 1958 (Vic)

Duty of care defined in the Wrongs Act 1958 (Vic)

s.59(2) However, peer professional opinion cannot be relied on for the purposes of this section if the court determines that the opinion is unreasonable.

An example of unreasonable conduct was described in the Report of the Cervical Cancer Inquiry (1988) (the Cartwright report) in New Zealand. Dr Herb Green’s work was found to have varied significantly from what was considered good practice when he intentionally undertreated women with cervical cancer and experimented on his patients without their consent.

Unreasonableness or irrationality

Hope v Hunter and New England Area Health Service (2009) 10 DCLR (NSW) 63:

‘it would be irrational to operate in the vicinity of a collateral nerve and blood vessel without first identifying them and protecting them from damage from surgical instruments’.

The court construed irrational not to mean ‘without reasons’ but instead reasons that are ‘illogical, unreasonable or based on irrelevant considerations’.

Duty of care defined in the Wrongs Act 1958 (Vic)

s.59(3) The fact that there are differing peer professional opinions widely accepted in Australia by a significant number of respected practitioners in the field concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section.

s.59(4) Peer professional opinion does not have to be universally accepted to be considered widely accepted.

Duty of care defined in the Wrongs Act 1958 (Vic)

s.60 Duty to warn of risk Section 59 does not apply to a liability arising in

connection with the giving of (or the failure to give) a warning or other information in respect of a risk or other matter to a person if the giving of the warning or information is associated with the provision by a professional of a professional service.

A court is not required to give any weight to usual practice in regard warnings of risk.

Brakoulias v Dr Karunaharan (Ruling) [2012] VSC 272 per Macaulay J

The Victorian Supreme Court interpreted s.59 of the Wrongs Act 1958 (VIC) as constituting a statutory defence to common law negligence. A plaintiff has to prove negligence according to the common law standard of care. If proven the defendant is negligent unless able to establish that he or she acted in a manner that accorded with peer professional opinion as set out in section 59.

In Dobler v Halverson (2007) 70 NSWLR 151 the New South Wales Court of Appeal determined that s 5O of the Civil Liability Act 2002 (NSW) (the New South Wales equivalent of s 59) provided a defence.

Ideal practice

‘Ideal Practice is located in Australia providing specialist medical & healthcare industry business coaching & marketing services in a consulting approach.’

http://www.idealpractice.com.au/about-us/

(1)  undertaking every possible test or every possible intervention. The Court would be likely to find that this practice was unreasonable, costly, unnecessary and detrimental to patients, especially if injury resulted; or

(2)  undertaking a practice that your peers do not undertake. This may be negligent if not properly supervised and approved by relevant authorities;

(3)  luckily guessing the correct diagnosis in a difficult clinical scenario with minimal testing. This is only luck and not reasonable practice.

Ideal practice might mean:

Reasonable practice includes: (1) undertaking tests, practices and

interventions that your peers consider to be reasonable. Maintain this knowledge by discussion with peers, journals and conferences, particularly applicable to solo practitioners;

(2)  if you wish to undertake a new procedure, do so with consent of the patient, the hospital and an ethics committee;

(3)  consider rare diagnostic possibilities that can be excluded with simple, non-invasive testing;

(4)  for example, studying your peers’ caesarean section rates.

If an investigation or treatment has been shown in the medical literature to be effective, cost-effective and affordable, and has been introduced widely in Australia as routine practice, this is likely to be held by the courts to be reasonable, and not ideal, practice.

Do not have to offer every service.

Ought to refer to other services if you don’t provide a particular service.

If a patient chooses not to take your advice

1.  Assess the patient’s capacity to make decisions on their own behalf.

2.  If competent to make decisions on their own behalf, ensure the giving, witnessing and documentation of full advice regarding the medical condition, the proposed investigation and treatment and the possible consequences of not undergoing the proposed interventions.

3.  If not competent, next of kin to make the decision or apply for a guardianship order.

Reasonable practice is:

1.  practising within your area of expertise only;

2.  offering services commensurate with those of your peers;

3.  having outcomes commensurate with those of your peers; and

4.  undertaking investigations and interventions on the basis of proper indications.