Patient autonomy as a limit on a doctor's duty to follow-up

Introduction – the problem

Personal autonomy underlies many aspects of civil and criminal law and is fundamental to the laws that regulate the doctor–patient relationship. Such autonomy is thus a key determinant of the duties that a doctor owes to his or her patient¹ and underlies the criminal and civil laws that govern informed consent and a patient’s entitlement to confidentiality and privacy. But while protection of a patient's autonomy imposes duties upon doctors it may also determine the limits of that liability particularly where the imposition of such a duty cannot co-exist with the objective of preserving the patient's autonomy.

Consider the following scenario. During the course of a consultation or thereafter, a doctor recognises that the patient may be exposed to a particular risk and asks the patient to make another appointment so that the particular risk can be further discussed or investigated. The appointment is made but the patient fails to show up on the allotted day. Soon thereafter, the risk that the doctor was concerned about materialises and the patient suffers injury as a result. The patient then seeks recourse against the doctor claiming that a breach of duty has occurred. A third party who suffered damage as a consequence of the patient's injury might also seek recourse against the doctor. The recent case of Grinham v Tabro Meats Pty Ltd & Anor; Victorian WorkCover Authority v Murray ² considers the scope of the doctor's duty in that situation.

The non-attending patient

The patient, who had just taken up a position as an abbatoir worker, initially consulted the doctor about getting immunised against Q fever virus.* At the initial consultation, the doctor advised the patient that he could only be vaccinated if he was not sero-positive. That was because administration of the vaccine to a sero-positive individual could cause a severe reaction. As such, the patient underwent a serology test later that day and a skin test about a week later. The results of those tests were ambiguous: the skin test was negative but the serology test was recorded as “low positive”. Because of that ambiguity, the doctor advised the patient that it was not clear whether he was sero-positive to the virus or not. He was also asked to return to the practice in one month's time for the skin test to be repeated and was given a pathology form so that he could book another serology test.

Notwithstanding this advice, the patient failed to book another appointment at the doctor's surgery and denied that he was ever given the pathology slip. The patient instead left the surgery on the understanding that, because he had tested “low positive”, he was sero-positive and therefore could not contract Q fever. On that basis, the patient continued to work at the abattoir for another four years. During that time, he took on work that increased his exposure to Q fever risk, but he did so on the assumption that he was immune to the virus. However, he ultimately did contract Q fever and suffered ongoing illness as a consequence. The patient then commenced proceedings against his employer. Prior to hearing, that particular claim was settled but the patient's employer and the statutory authority that provided workers' compensation ³ then brought a separate claim against the doctor. In essence, their case was that, had the doctor re-called the patient and ensured that he was properly immunised, then they would not have incurred liability to the patient.

The limits of the doctor's duty

A critical initial issue in the resolution of these claims was whether the patient had actually been informed that the first tests were ambiguous and that he would therefore need to return. While the patient disputed the matter, the court preferred the evidence given by the doctor (especially because it was supported by contemporaneous file notes). More specifically, the court found that the patient had been told that the tests did not reveal whether he was sero-positive or not. He was also told that it was not clear whether he could have the vaccine or whether he was already immune to Q fever. The patient was then informed that both tests would need to be repeated and was given a pathology slip for that purpose. In addition, the doctor had believed that the patient would book another appointment at the reception because he had done that on the two previous occasions. It was therefore not unreasonable for the doctor not to have booked that appointment.

Despite those findings, the question still remained whether, once the patient did not re-attend after one month, the doctor had been obliged to re-call the patient. That question particularly arose because the doctor had not specifically told the patient that he could not return to the abattoir. Further, the doctor had reason to believe that the patient would return to the abattoir in spite of the ambiguous results. Underlying these circumstances was the essential fact that the doctor also understood that the patient's main reason for the series of consultations was to ensure that he did not contact Q fever. But even in that situation, the court held that the doctor did not have a duty to re-call the patient for a further appointment. It was held in that respect that the relevant test was “what was reasonable in the circumstances, not what might be the perfect medical practice”. The court then continued that:

A standard of perfection may demand consideration and, indeed, implementation of a recall system in relation to any patient who fails to re-attend or undergo a pathology test. This in itself would be unreasonable.

In determining what would be reasonable in the circumstances, the court applied the decision of the House of Lords in Bolam v Friern Hospital Management Committee. ⁴ That decision, which had been incorporated into the applicable statutory scheme, set out the relevant standard of care which was that the doctor needed to comply with a standard that “a body” of other medical practitioners would have regarded as appropriate and reasonable. Applied to the facts of the case, the issue was whether there was evidence that other doctors would have acted in the way that this doctor had acted. The court assessed the evidence and found that it unequivocally supported the doctor's actions in this case. In fact, there was no evidence that other doctors’ surgeries instituted automatic re-call procedures where patients had themselves failed to make appointments.

For those reasons, the court concluded that the doctor had not breached her duty to the patient. That meant that neither the patient's employer nor the workers' compensation fund could recover from the doctor. In arriving at those conclusions, the court observed that the imperative of personal autonomy underlay the result. That was because the patient had been perfectly capable of understanding everything that the doctor had said during the last consultation. What was more, on the findings that were made, the patient had actually been informed of everything relevant to the matter at issue. He was therefore in a position to make an informed decision about whether to return for further testing or not. The imposition of liability upon the doctor was therefore not required to preserve the patient's autonomy. On the contrary, his autonomy would have been compromised by a requirement that the doctor pursue the patient for further testing. The need to protect the patient's autonomy accordingly determined both the content of the doctor's duty and its limits.

Conclusion: patient autonomy can limit doctors' liability

An interesting aspect of this case is that it was third parties, rather than the patient himself, who sought to recover damages in respect of the liabilities that they had incurred because the patient was not vaccinated. Yet they were denied recovery essentially on the basis that the patient had been entitled to choose not to return to the doctor for further testing if he so chose. While that result may seem acceptable in this case, would the same reasoning apply if the patient chose not to undergo confirmatory testing for a serious communicable disease which he then passed on to a third person? Would that third person be entitled to recover from the doctor? In relation to the doctor's duty to re-call, there would seem to be no reason to distinguish the cases: assuming the patient was put in a position to make an informed decision about the confirmatory test, the doctor's duty would be fulfilled.

However, it is possible that the third person who acquired the communicable disease could rely on a different duty, namely, the duty of disclosure. Previous case law ⁵ and professional guidelines ⁶ make clear that that duty of disclosure is also quite limited. The doctor would be obliged to explain the potential risks to the patient which would include transmission of the disease to other people and to ensure that the patient understands how to prevent transmission of the disease. Once that point was reached, the doctor would only be required to disclose the risk to a third party if he or she had reason to believe that the patient would not make that disclosure. ⁷ Like the doctor's duty to re-call then, the duty of disclosure must respect the need to protect the autonomy of patients to make their own choices concerning their health.