Abstract
The conception of the doctor–patient relationship under Australian law has followed British common law tradition whereby the relationship is founded in a contractual exchange. By contrast, this article presents a rationale and framework for an alternative model—a “Trust Model”—for implementation into law to more accurately reflect the contemporary therapeutic dynamic. The framework has four elements: (i) an assumption that professional conflicts (actual or perceived) with patient safety, motivated by financial or personal interests, should be avoided; (ii) an onus on doctors to disclose these conflicts; (iii) a proposed mechanism to contend with instances where doctors choose not to disclose; and (iv) sanctions for non-compliance with the regime.
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Notes
Both models are discussed in Bending and Tomossy (2011).
On 1 July 1, 2010, the Medical Board of Australia (MBA) adopted and reissued Good Medical Practice: A Code of Conduct for Doctors in Australia developed by the Australian Medical Council with the minor modifications required to reflect the Health Practitioners Regulation National Law Act 2009 (QLD). The Code (most recently updated March 2014) defines clear, nationally consistent standards of practice in contrast to previous state medical board codes of conduct. The development of the Code was a joint project of the Australian Medical Council, the Medical Board of the Australian Capital Territory, the New South Wales Medical Board, the Medical Board of the Northern Territory, the Medical Board of Queensland, the Medical Board of South Australia, the Medical Council of Tasmania, the Medical Practitioners Board of Victoria, and the Medical Board of Western Australia. It is worth noting that industry bodies seek to regulate distinct areas, with some codes in effect prior to and following the introduction of the national regime. These include: the Australian Medical Association Code of Ethics (2006), the Medicines Australia Code of Conduct (2009), the Royal Australian College of General Practitioners General Practitioners and Commercial Sponsorship (2006), the Royal Australasian College of Physicians Code of Professional Behaviour (2006), and the Royal Australasian College of Surgeons Code of Conduct (2010).
See Campbell et al. (2007). The breakdown of relationships as described by the study are as follows: receiving food in the workplace (83 %), receiving drug samples (78 %), receiving imbursement for costs associated with professional meetings or continuing medical education (35 %), and receiving payments for consulting, giving lectures, or enrolling patients in trials (28 %).
It also was found that participation in pharmaceutical industry-sponsored research was more commonly reported by those in salaried practice (49 %) than in private practice (33 %): “14.0 % of respondents reported premature termination of industry-sponsored trials, which they considered appropriate when in response to concerns about adverse drug effects. 12.3 % of respondents reported that industry staff had written first drafts of reports, which they viewed as an acceptable practice for ‘internal’ documents only. Of greatest concern to respondents were instances of delayed publication or non-publication of key negative findings (reported by 6.7 % and 5.1 % of respondents, respectively), and concealment of results (2.2 %)” (Henry et al. 2005, 557).
English: Sidaway v Board of Governors of Bethlem Royal Hospital [1985] AC 871, 876, Lord Scarman stated, in dissent: “In my view the question whether or not the omission to warn constitutes a breach of the doctor’s duty of care towards his patient is to be determined not exclusively by reference to the current state of responsible and competent professional opinion and practice at the time, though both are, of course, relevant considerations, but by the court’s view as to whether the doctor in advising his patient gave the consideration which the law requires him to give to the right of the patient to make up her own mind in the light of the relevant information whether or not she will accept the treatment which he proposes.” American: Canterbury v Spence (1972) 464F 2d 722. Canadian: Reibl v. Hughes (19) (1980) 114 DLR (3d): The “duty to warn arises from the patient’s right to know of material risks, a right which in turn arises from the patient’s right to decide for himself or herself whether or not to submit to the medical treatment proposed.”
Breen v Williams (1996) 186 CLR 71 [45] (Gaudron and McHugh JJ): “Any change in the law must be for Parliament.” Further at [46]: “Advances in the common law must begin from a baseline of accepted principle and proceed by conventional methods of legal reasoning. Judges have no authority to invent legal doctrine that distorts or does not extend or modify accepted legal rules and principles. Any changes in legal doctrine, brought about by judicial creativity, must ‘fit’ within the body of accepted rules and principles. The judges of Australia cannot, so to speak, ‘make it up’ as they go along. It is a serious constitutional mistake to think that the common law courts have authority to ‘provide a solvent’ for every social, political or economic problem. The role of the common law courts is a far more modest one.”
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Bending, Z.J. Reconceptualising the Doctor–Patient Relationship: Recognising the Role of Trust in Contemporary Health Care. Bioethical Inquiry 12, 189–202 (2015). https://doi.org/10.1007/s11673-014-9570-z
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DOI: https://doi.org/10.1007/s11673-014-9570-z