Disclosure of material risk as systems-error tragedy: Wallace v Kam (2013) 87 ALJR 648; [2013] HCA 19.
The law requiring a patient to be informed not just of the nature of a medical procedure but also its likely but subjectively significant risks, which blazed across the southerly firmament of patients' rights in 1992 with the decision of Rogers v Whitaker (1992) 175 CLR 479, appears to have now passed to the outer darkness of judicial deference. The decision of the Australian High Court in Wallace v Kam (2013) 87 ALJR 648; [2013] HCA 19 continues the judicial trend to go cool on patients' rights and restrict the capacity of medically injured people to claim redress which was evident in Rosenberg v Percival (2001) 205 CLR 434 and various Australian State civil claims statutes. This trend only heightens the analogy between the law of informed consent and classical literary tragedy. Indeed, heightening the analogy between the legislation and case law on disclosure of material risk and classical literary tragedy may provide necessary insights to bring greater justice to patients injured as a result of medical misadventure and incompetence.
College of Law, Australian National University. Fauncet@law.anu.edu.au
Thomas
T
Faunce
D001315:Australia; D030881:Disclosure / Q000331:legislation & jurisprudence*; D006801:Humans; D007258:Informed Consent / Q000331:legislation & jurisprudence*; D028701:Patient Rights / Q000331:legislation & jurisprudence; D013514:Surgical Procedures, Operative / Q000009:adverse effects