Informed consent and performance data: clinician experience as a material risk

In Australia, as in other common law jurisdictions, the doctrine of informed consent has developed from the principle that individuals have a right to decide for themselves whether or not to undergo medical treatments. The personal autonomy of the patient is facilitated by the provision of information by their medical practitioner. While a description in broad terms of the procedure to be performed is sufficient to establish valid consent – and to avoid the tort of trespass to the person – more information may be required to satisfy the doctor’s duty to warn of a material risk, and to negate a claim of negligence.

The scope and content of the duty to warn has a degree of flexibility, in that practitioners are expected to be responsive to the needs of individual patients and that this duty is subject to therapeutic privilege. The focus of most informed consent discussions understandably centres on the risks of the procedure to be undertaken, and possible alternative treatment options. In recent years, however, debate has arisen both internationally and in Australia over whether the duty to warn might also encompass disclosure of risks relating to the doctor undertaking the procedure, including information about their skill or experience. This debate is increasingly pressing as data pertaining to the skill and experience of individual doctors becomes more routinely collected and more widely available.

To date, the majority of debate over the role of performance data in health care has related to surgeons and surgical outcomes. While there is no reason that other specialties could not be monitored and assessed using similar data analysis methods, this article will focus on surgeons as the main example as this field currently has the most developed data collection and usage. Developments in the legal obligations of surgeons are, however, likely to have consequences for the obligations and practice of other health practitioners in the future.

As the collection, analysis and dissemination of surgical performance data becomes increasingly commonplace, it is worth determining whether, and under what circumstances, a surgeon has a duty to disclose this information to his or her patients. This article will first establish the extent to which surgical skill has been an issue in failure to warn complaints in the past, and the potential for it to be a significant future issue. The duty to warn will then be assessed with reference to statutory obligations and relevant case law. Finally, policy considerations arising from a duty to disclose performance data will be explored to identify possible future limits.