10th Greek Australian Legal and Medical Conference
Mykonos, Greece 2005

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LAW & MEDICINE: A DANGEROUS LIAISON?

Sian Elias [1]

What Liaison?

The subject of the conference is "Law and Medicine": A Dangerous Liaison?"

"Law" is a body of enacted or customary rules recognised by a community as binding. Medicine, in my dictionary, is described as "the art of restoring and preserving health." Rules for artists then is part of my topic, and it certainly carries the whiff of danger. But this liaison is dangerous in the other direction. The practice of medicine is throwing up some of the more difficult problems contemporary law has to deal with. Modern medicine is dangerous for law too.

Those who practice medicine today are subject to the obligations and responsibilities imposed by the wider community through law. But they are also subject to a body of rules adopted by the community of which they are part by profession. Here, so close to the birthplace of Apollo, it is worth remembering that the professional obligations are as old as the civil obligations and that their breach also entailed danger. The Hippocratic oath taken in the name of Apollo, the physician, obliges the medical practitioner to help the sick to the best of his ability and judgment and to do no harm or wrong in that vocation.

The practice of medicine has always therefore been taken under the obligations of competence and skill and to prevent harm or wrong to those treated. Giving content to these obligations has shifted over time with advances in knowledge and the responsiveness of ethics to social development. The connection or liaison between medicine and law (whether the obligations accepted with membership of the professional community or imposed by wider community standards) has always been dangerous because the medical practitioner who fails to live up to the obligations undertaken or imposed has always been at risk. Under the Hippocratic oath it is explicitly recognised that violation will lead to loss of enjoyment of life and art and loss of honour and fame among all men. Shame, blame and liability for loss also attend lapses under the general laws. It was ever thus.

It is true that modern conditions may have amplified the impact upon enjoyment of life. And there seems to be a climate of anxiety about the connection between the practice of medicine and the obligations imposed by law. I want to touch on some of the factors which have contributed to this. But first I want to talk about the liaison or connection between lawyers and medical practitioners. Of course we have quite different functions. We are not in conflict however. So I agree with George Annas when he comments that debates between our two professions, which often degenerate into unflattering caricatures, are "pointless from a public policy perspective". [2] Suggestions by some commentators of an "age-old conflict" between the professions [3] in which both sides claim to be acting in the best interests of the patient is I think wrong. In fact, closer to the mark (though similarly exaggerated) is the view that the interaction between law and medicine has led at times to "inadvertent collusion" with an "over-deference" by law to medicine which has been "dangerously rights-reducing". [4] Such liaison we need to avoid.

So I am not one who sees the problems of medical law arising out of competition between the professions. Rather, I am of the view that the doctor-patient relationship is throwing up very difficult legal problems. That relationship has changed dramatically from my childhood growing up in a medical family. There is no point in romanticising about those days. They were characterised by a paternalism no one would accept today and the standards of treatment available to patients and the ethical framework within which they are receive it are today light years ahead of what was available in my youth.

Medical law and judicial obligation

I started with the Hippocratic Oath. Judges are subject to oaths too. The judicial oath in Australia and New Zealand obliges the judge to "do right to all manner of persons after the laws and usages" of the jurisdiction within which the judge serves. What is "right according to law" is not a static concept. It shifts with the needs of a society. Enacted legislation responds to those shifting needs. So too must judges in applying open-ended standards contained in legislation and in application of the common law. As Oliver Wendell Holmes memorably put it, "The life of the law has not been logic but experience." [5] That truism can lead at times to dissonance between law and science.

Law is a general discipline, applied for the most part by generalist judges. Its methods are not scientific. And its system of proof attempts to arrive at legal outcomes applying common values and experiences of what is fair and reliable. Legal ends may be incapable of scientific proof or may turn only in part on what can be scientifically demonstrated. Judges may be called upon to decide novel points generated by new knowledge which has outstripped the development of common ethical standards. Public expectations and scientific medical knowledge may be advancing very fast. New technology, particularly those affecting birth and death, throw up some of the more difficult ethical questions for judicial determination. Upon them there may be little public consensus.

In such cases, the law and its practitioners are exposed. It is difficult, for example, to think of a case that has so divided public opinion and has so threatened respect for law and its institutions as Roe v Wade [6] in the United States. Its shadow falls across the aging Justices of the Supreme Court and may well be determinative in the appointment of their successors.

On the other hand, legal determinations through court processes may be the only feasible route in some hard cases. In the Bland [7] case, and in comparable cases in other jurisdictions including my own, [8] concerned with withdrawal of life support, court authority was a protection to medical practitioners and sometimes a mercy to family members. As Lord Mustill explained in Bland:

No sensible person could want the doctors to take the risk of having to validate their conduct after the event in the context of a trial for murder. [9]

The challenges of the times

In our times the challenges, thrown up by modern medicine and the conditions of modern society in which medicine is practised, seem to me to be at least as dangerous for law as for medicine. The main reasons lie with the huge technological advances in medicine and science and a shift in law to emphasise individual rights. These shifts have inevitably thrown up ethical strains. They have coincided with a rise in consumer assertiveness which is suspicious of the pretensions of professional learning, both of doctors and lawyers. And the great strides made by modern medicine and modern technology have raised expectations dramatically, and sometimes unrealistically. Our societies are less willing to accept loss or failure or deterioration. As George Annas has said in relation to medical malpractice suits, we have "an appetite for immortality". [10] And a culture of blame. These attitudes are pervasive. They risk blurring moral sensibilities.

Merry and McCall Smith in a recent article have referred to a marked tendency to look for a human actor to blame whenever things go wrong:

It is this attitude which fuels media and political campaigns for the identification and punishment of those responsible for whatever tragedy or social problem has seized the attention of the public. It is the psychology of the moral panic and it threatens certain fundamental values of a liberal, humane society: namely, that censure and punishment should be reserved - as far as is possible - for those whose actions reveal morally relevant wrongdoing. [11]

They suggest that medical accidents now occupy a "central role in the contemporary drama of blame".

Such attitudes are directed not only at medical practice. All who manage risk in our society are vulnerable to them. Thus widespread public outrage is directed at judges or Parole Boards who release people held in custody who go on to kill or injure. Similar anger is directed at police or welfare agencies when intervention comes too late.

It is no use decrying this phenomenon. It is a human response which is universal. It is exacerbated by modern conditions, particularly by modern communications which lend themselves to campaigns to mobilise public opinion. Doctors are frequent targets. We need to meet this challenge and to learn to live with it. It is part of a wider emphasis on consumer interests. How did this consumer movement gain such momentum?

Accountability

Both our professions have considerable power in our societies. Both were until recently male-dominated. It is not surprising that both became the subject of increasing critical public scrutiny in the 1970s and 1980s. In New Zealand at least and I suspect elsewhere, this was not a lawyer-led movement based on assertion of legal rights. It was a popular movement.

In New Zealand the movement for better accountability may in part have been a reaction to no-fault compensation. The Accident Compensation system first introduced in New Zealand in 1974 provided cover for medical accidents (but not for illness). It has been amended a number of times particularly in relation to injuries caused by medical treatment.

There are great benefits for law, medicine and patients in a no-fault compensation. It does not however entirely do away with the difficult questions which loom large in jurisdictions without such cover and which rely on medical malpractice suits to compensate patients for medical negligence. So, for example, questions of causation remain important and give rise to difficult determinations where illness and negligent treatment coincide. Our system does not provide compensation for mental distress or mental illness arising out of negligent treatment unless the treatment has resulted in a physical injury causative of the mental distress or illness. That distinction has meant, for example, that in cases where miscarriage occurs through medical negligence the mother has been held to retain common law remedies. Where common law remedies are not excluded, all the current legal problems associated with causation and measurement of loss remain.

More significantly, no-fault compensation has not satisfied a widespread view that negligent medical practitioners should be held accountable. As a result, amendments to the legislation in 1992 resulted in findings of fault being introduced only for health professionals as a basis for compensation under the legislation. Exposure to findings of fault and an explicit connection between such findings and disciplinary sanctions understandably led to more contested determinations of eligibility for compensation. There has been a reaction to the complexity of the legislation and the culture of blaming and reticence in provision of information it produced. A review of the system was extremely critical. There was recognition the legislation did not promote better standards. A new Amendment Act has just been passed which provides compensation for "treatment injury" without requiring attribution of fault. It is hoped that the new regime will encourage health practitioners to co-operate with the claims process and will provide better information. The legislation continues to impose reporting obligations for risk of harm to the public. How that is interpreted and what threshold is set is likely to be key to the stated aim of promoting what is described as a "learning culture".

In addition to the compensation regime, a statutory system of investigation of breaches of codes of conduct was enacted in New Zealand in the Health and Disability Commissioner Act 1994. The move for this legislation was again not led by lawyers. It was a response to a widespread popular belief that the no-fault system provided insufficient accountability. The legislation was finally fuelled by grass-roots reaction to what was seen as the professional arrogance and paternalism disclosed by the Royal Commission of Inquiry into the treatment of women with cervical cancer at National Women's Hospital. [12] The Health and Disability Commissioner Act 1994 attempted a "one stop shop" for complaints about medical treatment based on recognition of what is described as the "rights of health consumers". [13] The Commission's processes include investigation, determination of claims for compensation (for heads of damage not covered by Accident Compensation) and referral to disciplinary bodies. The purpose of the Act as set out in s 6 is "to promote and protect the rights of health consumers ... and to that end, to facilitate the fair, simple, speedy, and efficient resolution of complaints relating to infringement of those rights." Section 20 of the Act provides for the enactment of a code of rights which is required to reflect the expectations of informed consent. The Health and Disability Commissioner Act and the code emphasise the patient's right to be fully informed.

I mention this New Zealand legislation to make the point that, whether or not "fault" is uncoupled from compensation, some acceptable alternative to determine responsibility is inevitable. It responds to a widespread community need for accountability. Such systems have to be seen as valid in their own terms. Whether they assist in raising professional standards is as debateable as whether medical malpractice suits have that effect.

In fact, raising standards was one of the expected benefits of the Health and Disability Commissioner Act. Interestingly, in his 10th Annual Report in 2004, the Commissioner expressed doubts about this goal:

Evidence is emerging that complaints are not necessarily the treasure trove that quality improvement gurus would have us believe. Instead of providing reconciliation and closure, complaints can have toxic effects on patients and health professionals, and may perhaps more accurately be described as "toxic treasure". [14]

Also revealing is the Commissioner's view, in the same report, that empowerment of complainants through the new legislative procedures does not always satisfy. He expresses concern about the attitude of the news media, noting that a minority of disgruntled patients are quick to contact them and that public naming too often results. "Equally regrettable" was "the media's willingness to be used by complainants who seek to put public pressure on HDC to reverse a provisional finding". [15] It is not surprising that doctors, though usually vindicated by the processes and rarely "named and blamed", are reported to have a very negative view of the complaints process, although they think it preferable to malpractice suits. The report notes that New Zealand "faces a serious health workforce shortage. One of the factors cited by doctors giving up practice is hostile media publicity." [ 1]6 The Commissioner and his staff are putting more emphasis on mediation and restorative justice processes to overcome these problems, but in part they may be inevitable consequences of applying consumer models. That does not mean to say that these attempts to meet public expectations are misconceived. Far from it. No one should want to go back to the old days.

The protection of law

There are signs of disenchantment with the hopes that informed consent and empowerment of "health consumers" are a complete solution to resolving legal accountability. They are of course an important part of it but a more balanced approach seems to be emerging. I want to suggest that balance is not to be found in less law. That may be contrary to much received wisdom on this topic.

Human rights now provide the courts of most jurisdictions with organising principles we have lacked in the past. Use of them has revolutionised our methodology, making our reasons more accessible to a wider audience. Even in those countries lacking enacted Bills of Rights, such as Australia, the reasoning applied in other jurisdictions is persuasive. That is not surprising. Our world has shrunk. "Nothing", as Kenichi Ohmae memorably put it, "is 'overseas' any longer". [17] The medical issues are the same. The ethical and legal considerations are fundamentally the same. People and their aspirations are very much the same (another result of the power of mass communication).

I do not think a development to more law rather than less in regulating the relationship between patients and medical practitioners is something to deprecate. Better articulation of principle promotes understanding of obligations, which helps everyone involved because it gives them more certainty in how they conduct themselves.

Legal method depends on reasons exposed for all to pick over. It has drawbacks of course and often the outcomes are imperfect. But a great advantage of legal methodology is that it is not quick to judgment. It is a deliberative process which hears all sides of a question. It is dispassionate and detached. And that is a great virtue when issues generate great emotion. It is a check on abuse of power of all sorts, particularly of popular enthusiasms. Professional disciplinary bodies are often not immune from public clamour. The supervision of the courts is important protection.

I hope in this I do not sound smug about the virtues of the law. I will come on to discuss ways in which I think the law is floundering in areas affecting medicine. But I want to make the point that the institutions of law are important protections not only for the rights of patients but also for the rights of doctors. And that key in this is legal method and detachment. So I do not agree with some commentators who have suggested that medical legal issues should be resolved in a collaborative forum in which medicine and law meet or that judicial supervision should defer to medical judgment on matters of legal interpretation affecting medical problems.

So, John Dawson, in criticising a decision of the New Zealand Court of Appeal involving compulsory treatment of the mentally disordered, is of the view that the court was not well placed to consider the overall consequences of the different interpretations of the legislation in issue. He thought they turned on the interaction between the mental health and criminal justice systems, flow of patients through the commitment process, therapeutic relations with patients who would otherwise accept voluntary care, the administrative loads of clinicians and tribunals and so on. It is his opinion that:

One needs a considerable understanding of mental health law and professional practices to appreciate these consequences in full. This is not the kind of knowledge usually possessed by superior courts on their occasional forays into this field. [18]

The solution advocated by Dawson is court deference to the expert body whose decisions are being judicially reviewed. On this view "legal or lay approaches to meaning should not prevail". Dawson suggests a partnership between lawyers, psychiatrists and community members in interpreting and applying medical legislation. The role of courts should be confined only to cases of patent error or unreasonable interpretation.

There are real dangers if legal process is co-opted into a collaborative, therapeutically-driven approach. In a number of areas of law, therapeutic intervention has at times been seriously destructive of rights. Examples are to be seen in some past child welfare interventions, for example. No one suggests that specialist agencies should not pursue their vision of what constitutes best outcomes. But it is equally important that courts of general jurisdiction provide a check against a register of general principle so that good ends do not excuse doubtful means.

Checking the use of power is the central responsibility of courts. The great question of law is "by what authority?" Courts must not be co-opted into collaborative effort which distorts that function. They must stand apart. And the dangers of over-deference to clinical judgment is exacerbated by the fact that modern clinical practice is sometimes drawn into health administration. As Dawson explicitly acknowledges, managerial medicine may be inevitable in modern society. Managerial justice is an oxymoron.

Rights are for everyone

In addition to technological advances in medicine which impact upon medical law, there has been in my lifetime in the law a more general revolution which has profound effects upon the liaison between law and medicine. Law has become "rights centred." The empowerment of the individual through law is not something to be disparaged. The need arose out of the dreadful experiences of 60 years ago. Some of which, it should be remembered, involved medical experimentation and forced treatment.

As I have already mentioned, the great virtue of statements of rights which are subscribed to in legislation or through international covenants is the organising principles they provide. They assist reasoning. That helps judges engaged in deliberative processes of course. But it also helps in a wider public discourse. Statements of rights are touchstones for conduct and reminders of basic principle which all of us who make decisions affecting the lives of others need to keep firmly in mind.

The preamble to the Universal Declaration of Human Rights recognises first:

...the inherent dignity and of the equal and inalienable rights of all members of the human family.

These are described as "the foundation of freedom, justice and peace in the world".

Article 1 provides:

All human brings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

This is the background to the modern law of medicine. The dignity of the individual is the first principle. Other rules build on this.

Thus, in New Zealand section 11 of the Bill of Rights Act 1990 provides that "everyone has the right to refuse to undergo any medical treatment." The ability to exercise proper choice inevitably depends upon the information the patient receives. That means informed consent is a human right.

The implications were explained recently in Chester v Afshar [19] by Lord Steyn :

Individuals have the right to make important medical decisions affecting their lives for themselves... Surgery performed without the informed consent of the patient is unlawful. The court is the final arbiter of what constitutes informed consent. Usually, informed consent will presuppose a general warning by the surgeon of a significant risk of the surgery.

... If there is a significant risk which would affect the judgment of a reasonable patient, then in the normal course it is the responsibility of a doctor to inform the patient of that significant risk, if the information is needed so that the patient can determine for him or herself as to what course he or she should adopt.

In modern law, medical paternalism no longer rules and a patient has a prima facie write to be informed of a small, but well established, risk of serious injury as a result of surgery.

This of course is the approach taken in Australia in Rogers v Whitaker. [20] In New Zealand, we followed it in legislation almost immediately. The Code of Rights enacted in the Health and Disability Commissioner legislation expresses the right to the information that "a reasonable consumer, in that consumer's circumstances" would "expect" or "need" to make an informed choice or give informed consent.

Schneider and Farrell have questioned how well the move to empower patients has worked in practice. [21] They say that although "bioethicists and courts" have been keen on the articulation of the principle, they have been less interested in testing the practice. They suggest that the success of informed consent depends on two things:

First, patients must be able to understand and remember the information doctors give them. Secondly, patients must be able to analyse that information and use it to make a decision. Furthermore, the sicker patients become the less they understand and retain. [22]

There is a view referred to by Baragwanath J in A v Health Board X and Doctor B, [23] that a doctor should be obliged to establish and maintain a written and signed record. Patients, he says, are notoriously bad at remembering what they are told. And hindsight is dangerous indeed. But so is too much faith in formalism. The paper trail may disempower too.

One of the difficulties thrown up by the emphasis on informed consent is assessment of consequential loss. There are two issues: first, determining what the patient would have done with the information; secondly, the assessment and qualification of resulting loss.

In the Australian case of Rosenberg v Percival [24] the High Court considered that trial judges they should observe "great care" in evaluating plaintiffs' evidence as to what they would have done if properly advised. The Ipp report [25] confirmed the subjective approach to causation applies in the United Kingdom and Australia (what the particular patient would have done) but recommended that the plaintiff's own testimony about what he or she would have done should be inadmissible altogether. Several Australian States have since enacted the recommendation. In Canada loss is assessed in such cases against an objective approach standard: whether a reasonable patient would have declined the treatment if the information had been disclosed. That yet may emerge as a safer route. But it is against the tide of empowerment of patients and it arguably substitutes legal paternalism for medical paternalism.

Identifying responsibility (the problem of causation)

I turn to illustrate my point that medicine is throwing out some problems for law which are testing indeed. I concentrate on problems of causation, the attribution of responsibility for damage.

(i) Apportioning responsibility

When things go wrong it is rarely the responsibility of the last actor in the chain. Systemic responsibility is often difficult to sheet home because it is multi-faceted. And yet the most important lessons to be learned from medical failure are often ones about the systems within which medical practitioners work. Disciplinary bodies may have more scope to deal in light and shade and degrees of responsibility. But law has been inconsistent in its approach to liability and the ability to apportion responsibility. There are risks of serious injustice if we do not develop better accuracy or, failing that, more satisfactory crude measures which deliver appropriate justice.

Increasingly, the courts are accepting that there is no uniform causal requirement for liability for negligence. [26] In Australia, Canada, the US, and England the traditional "all or nothing" approach of the 'but for' test is being reassessed. As Mason CJ said in March v E & MH Stramare Pty Ltd: [27]

...the "but for" test "applied as an exclusive criterion of causation, yields unacceptable results and the results which it yields must be tempered by the making of value judgments and the infusion of policy considerations".

 The problem is particularly acute in the case of man-made diseases resulting from widespread diffusion of chemical products manufactured and marketed by a number of corporations.

This is a topic that is dealt with in the laws of a number of European countries. Thus in Germany a reduced burden of proof of causation applies in the case of grave treatment errors. [28] And in Greece, Article 926 of the Greek Civil Code provides:

If damage has occurred as a result of the joint action of several persons, or if several persons are concurrently responsible for the same damage, they are all jointly and severally implicated. The same applies if several persons have acted simultaneously or in succession and it is not possible to determine which person's act caused the damage. [29]

Similar provisions are to be found in the Civil Codes of Austria and the Netherlands. And the American Law Institutes Restatement of the Law provides (adopting a Californian precedent):

Where the conduct of two or more actors is tortious and it is proved that harm has been caused to the plaintiff by only one of them, but there is uncertainty as to which has caused it, the burden is upon each such actor to prove that he has not caused the harm. [30]

In California in a class action for personal injuries resulting from prenatal exposure to an anti-miscarriage drug that caused birth defects attributed responsibility among a large number of defendants according to market share. [31]

The problem is that proof even on the reverse onus may be impossible. The House of Lords has picked up on these developments in Fairchild v Glenhaven Funeral Services Ltd, [32] a case concerned with the liability of consecutive employers for asbestos exposure. A reverse onus of proof (which would have allowed each employer to disprove liability) was not feasible. As Lord Hoffman said "ex hypothese the state of medical knowledge is such that the burden cannot be discharged". [33] All employers were held liable on a policy judgment that was acknowledged to have "little to do" with "logic and elegance". This is not the last word on this topic in our jurisdictions. It has implications for medical liability and attribution of fault for medical error.

(ii) Misdiagnosis

Misdiagnosis of underlying illness causes particular problems for law, as is demonstrated by the recent English case of Gregg v Scott [34]. There the medical practitioner failed to diagnose a lump as non-Hodgkins lymphoma. The trial Judge found that statistical evidence indicated that with the particular type of the disease the claimant had only a 42% chance of survival for 10 years, even if treated promptly. By the time the misdiagnosis was picked up, the delay in starting treatment was found to have reduced his chances of survival for 10 years to 25%. A majority in the House of Lords agreed with the lower courts that since the claimant was unlikely to survive more than 10 years on the balance of probabilities (because his chances were assessed at less than 50% whether or not treated promptly), he could not recover. There were strong dissents from Lord Nicholls and Lord Hope.

The problem is that the general rule for causation works well enough for proof of past facts, but is unsatisfactory when applied to determine what would have happened had the wrong not been committed. That is a hypothetical inquiry.

The conflicting policy considerations were frankly debated in Gregg v Scott. Lord Hoffman took the view that "what we lack is knowledge and the law deals with lack of knowledge by the concept of the burden of proof". [35] But Lord Nicholls considered this was "rough justice". In his view the law should adapt and apply statistical analysis (upon which the percentage chances had been based). The claimant had lost a chance which was of value to him and for which he should be able to recover damages.

23 [This is hardly surprising.] Enormous advances have been made in medical knowledge and skills in recent years, in this country and internationally. New and improved drugs and procedures make possible ever more alleviation of illnesses and injuries. But the outcome of medical treatment in any particular case remains beyond anyone's control. It is often a matter of considerable uncertainty, in some types of case more than others. Doctors cannot guarantee outcomes. Every person and his personal circumstances and history are different. The way some drugs work is not understood fully. The response of patients to treatment is not uniform, nor is it always predictable. Faced with a serious illness or injury doctors can often do no more than assess a patient's prospects of recovery. Limitations on human knowledge mean that, to greater or lesser extent, the prognosis for a patient is inherently uncertain. Indeed, sometimes the very diagnosis itself may be problematic.

24 Given this uncertainty of outcome, the appropriate characterisation of a patient's loss in this type of case must surely be that it comprises the loss of the chance of a favourable outcome, rather than the loss of the outcome itself. Justice so requires, because this matches medical reality. This recognises what in practice a patient had before the doctor's negligence occurred. It recognises what in practice the patient lost by reason of that negligence. The doctor's negligence diminished the patient's prospects of recovery. And this analysis of a patient's loss accords with the purpose of the legal duty of which the doctor was in breach. In short the purpose of the duty is to promote the patient's prospects of recovery by exercising due skill and care in diagnosing and treating a patient's condition.

25 This approach also achieves a basic objective of the law of tort. The common law imposes duties and seeks to provide appropriate remedies in the event of a breach of duty. If negligent diagnosis or treatment diminishes a patient's prospects of recovery, a law which does not recognise this as a wrong calling for redress would be seriously deficient today. In respect of the doctor's breach of duty the law would not have provided an appropriate remedy. Of course, losing a chance of saving a leg is not the same as losing a leg: see Tony Weir Tort Law (2002) p76. But that is not a reason for declining to value the chance for whose loss the doctor was directly responsible. The law would rightly be open to reproach were it to provide a remedy if what is lost by a professional advisor's negligence is a financial opportunity or chance but refuse a remedy where what is lost by a doctor's negligence is the chance of health or even life itself. Justice requires that in the latter case as much as in the former, the loss of a chance should constitute actionable damage.

In New South Wales [36] and Ireland [37] courts have considered that the traditional rules of causation are too restrictive of liability in cases of clinical negligence of this sort.

Well, this is all pretty exciting stuff. Causation issues don't arise in an acute form in claims against lawyers and accountants. Loss of a chance assessment is called for in cases where a hypothetical situation needs to be considered to establish the measure of loss, for example where negligent advice is given and followed and the measure of loss is what would have happened if sound advice had been obtained. But such cases do not call for consideration of so many unknown factors which may affect the success of treatment in the case of the individual patient.

I was telling one of my colleagues on the New Zealand Supreme Court about Gregg v Scott. He expressed considerable relief that with our no-fault system we won't have to be considering cases of such difficulty. I am not so sure we won't. Under the new Accident Compensation legislation in New Zealand a "treatment injury" can arise through "diagnosis of medical condition". But cover for treatment injury does not extend to "personal injury attributable to an underlying health condition". I am not sure where that leaves loss of the chance of a longer survival rate, statistically assessed. Arguably, it may be outside the system, leaving intact common law damages or, more probably, compensation under the Health and Disability Commissioner Act.

(iii) Breach of the obligation to inform

As if these problems are not bad enough, questions of causation where the obligation to inform has been breached have created a real storm among judges and academics. In Australia, the High Court in Chappel v Hart, [38] over a strong dissent by McHugh and Hayne JJ, held by a majority [39] that a surgeon who failed to warn a patient of a small risk of an operation was liable when the risk eventuated even though the operation would have been undertaken at a later stage by the patient, with the same risk. In the United Kingdom, the House of Lords also divided on similar facts in Chester v Afshar. [40] The majority of judges emphasised policy considerations and "corrective justice". [41] Lord Hope (one of those in the majority) endorsed the reasoning of Kirby J in Chappel v Hart. He, too, saw the answer turning on policy considerations:

88....I am encouraged too by the answer which Professor Honore gave to the question which he posed for himself in his case note on that case at p 8: "is this a case where courts are entitled to see to it that justice is done despite the absence of causal connection?" I would hold that justice requires that Miss Chester be afforded the remedy which she seeks, as the injury which she suffered at the hands of Mr Afshar was within the scope of the very risk which he should have warned her about when he was obtaining her consent to the operation which resulted in that injury.

 Lord Bingham and Lord Hoffman, dissenting, preferred the reasoning of McHugh J in Chappel v Hart. Lord Bingham's view was:

It is trite law that damage is the gist of the action in the tort of negligence. It is not suggested that it makes any difference whether a claim such as the present is framed in tort or in contract. A claimant is entitled to be compensated for the damage which the negligence of another has caused to him or her... But the corollaries are also true:...a defendant is not bound to compensate the claimant for damage not caused by the negligence complained of. The patient's right to be appropriately warned is an important right, which few doctors in the current legal and social climate would consciously or deliberately violate. I do not for my part think that the law should seek to reinforce that right by providing for the payment of potentially very large damages by a defendant whose violation of that right is not shown to have worsened the physical condition of the claimant. I would respectfully adopt the reasoning of McHugh J in his dissenting judgment in Chappel v Hart (1998) 195 CLR 232. [42]

Lord Hoffman pointed out that the conventional law is that the claimant must prove that the defendant's breach of duty caused him damage.

29. Where the breach of duty is a failure to warn of a risk, he must prove that he would have taken the opportunity to avoid or reduce that risk. In the context of the present case, that means proving that she would not have had the operation.

30. The judge made no finding that she would not have had the operation. He was not invited by the claimant to make such a finding. The claimant argued that as a matter of law it was sufficient that she would not have had the operation at that time or by that surgeon, even though the evidence was that the risk could have been precisely the same if she had it at another time or by another surgeon. A similar argument has been advanced before this House.

31. In my opinion this argument is about as logical as saying that if one had been told, on entering a casino, that the odds on No 7 coming up at roulette were only 1 in 37, one would have gone away and come back next week or gone to a different casino. The question is whether one would have taken the opportunity to avoid or reduce the risk, not whether one would have changed the scenario in some irrelevant detail. The judge found as a fact that the risk would have been precisely the same whether it was done then or later or by that competent surgeon or by another.

It has to be said that law does not look good when such divisions arise about core concepts of liability and loss. There are suggestions in some of the cases that it might be preferable to grant a distinct remedy for breach of the obligation to inform without compensating for the realised risk of the treatment. In New Zealand that could conceivably be achieved under the New Zealand Bill of Rights Act or, more probably, for damages for breach of the Code of Conduct. It would leave recovery for the damage suffered as a result of the risk eventuating to be confined to malpractice cases where it was proved that the patient would have declined the treatment or taken effective steps to reduce the risk. Difficult additional questions arise. How does one assess the loss of the chance to have an operation performed by a more experienced surgeon (an issue in Chappel v Hart). Is the damage to be abated by assessment of the likely progress of any underlying disease? And how is that to be assessed? Using statistics or expert opinion?

In the meantime, it is hard to escape the conclusion of one English Court of Appeal judge that in these cases determining causation for medical error the law has lost its way.

A doubtful liaison

There are other areas of embarrassment where medical problems of our time are challenging settled legal doctrine. Some are to be explored in the conference. They include the way law treats insanity and diminished responsibility in criminal law and predicts dangerousness for the purposes of detention. They include the non-use or inconsistent use of expert medical evidence where the law prefers to leave matters of intent and behaviour to community standards expressed by a jury. They include conflicts between therapeutic values and the interests of community safety and questions about competence to refuse medical treatment.

Law and medicine is a dangerous liaison for both our professions. Neither is infallible. We do the best we can. There is no disgrace in that. We will not always agree and neither of us may be right. In life it pays not to be too certain. On that note, I leave you with a work by a young New Zealand poet, Glenn Colquhoun, who is also a medical practitioner. It is about doubt - and about being a doctor.

When I am in doubt
I talk to surgeons.
I know they will know what to do.
They seem so sure.

Once I talked to a surgeon.
He said that when he is in doubt
He talks to priests.
Priests will know what to do.
Priests seem so sure.

Once I talked to a priest.
He said that when he is in doubt
He talks to God.
God will know what to do.
God seems so sure.

Once I talked to God.
He said that when he is in doubt
He thinks of me.
He says I will know what to do.
I seem so sure.

FOOTNOTES

[1] Chief Justice of New Zealand.

[2] George J Annas Judging Medicine (1988), 183.

[3] Described, for example, by RA Hope of the Department of Psychiatry, University of Oxford in "The Birth of Medical Law" (1991) 2 Oxford Journal of Legal Studies 247.

[4] Sheila McLean Old Law, New Medicine (1999) London at xiii.

[5] The Common Law (1881), 1.

[6] 410 US 113 (1973).

[7] Airedale NHS Trust v Bland [1993] 1 All ER 821

[8] Auckland Area Health Board v Attorney-General [1993] 1 NZLR 235.

[9] At 886.

[10] Judging Medicine, 189, citing novelist Don de Lillo.

[11] Errors, Medicine and the Law (2001), 9-10.

[12] The Report of the Cervical Cancer Inquiry, (1988) Auckland (The Cartwright Inquiry).

[13] Health and Disability Commissioner Act 1994, s 6; R v Home Secretary (ex parte) Simms [2000] 2 AC 115; Thorburn v Sunderland City Council [2002] EWHC 195.

[14] Health and Disability Commissioner, Annual Report for the Year Ended 30 June 2004, 1.

[15] At 3.

[16] At 3.

[17] The Borderless World, London, 1991.

[18] John Dawson "Judicial Review of the meaning of mental disorder" (2003) 10 Journal of Psychiatry, Psychology and Law, 164, at 166.

[19] [2004] UKHL 41; [2004] 3 WLR 927 at 932-3.

[20] (1992) 109 ALR 625.

[21] Schneider and Farrell "Information, decisions and the Limits of Informed Consent" in Freedman and Lewis (ed) Law and Medicine (2000) Current Legal Issues, Oxford, 107.

[22] At 108.

[23] High Court, Blenheim, 15 March 2005, CIV-2003-406-14.

[24] (2000) 178 ALR 577.

[25] D Ipp et al, Review of the Law of Negligence: Final Report (2002).

[26] In the United Kingdom, Lord Hoffman has been in the forefront of the move away from any rigid approach. See for example Environment Agency v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22, 29 and Kuwait Airways Corporation v Iraqi Airways Co [2002] 2 AC 883, 1106, para[128].

[27] (1991) 171 CLR 506, 508.

[28] Christian Von Bar The Common European Law of Torts (2000) 2 at 441-443, para[416].

[29] Cited by Lord Bingham in Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32 at para[26].

[30] Section 433B(3) of the Restatement (Second) of Torts at 441-442.

[31] Sindell v Abbott Laboratories 26 Cal. 3d 588.

[32] [2003] 1 AC 32 at para [26].

[33] At para [65].

[34] [2005] UKHL 2; [2005] 2 WLR 268.

[35] At 84.

[36] Ruffo v Hosking [2004] NSWCA 391.

[37] Philp v Ryan [2004] 1 IESC 105.

[38] (1998) 195 CLR 232.

[39] Gaudron, Gummow and Kirby JJ.

[40] [2004] UKHL 41.

[41] Per Lord Steyn at para 21.

[42] At para 9.

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