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General / Thematic: The Individual Judge

Informed Consent and Performance Data: Clinician Experience as a Material Risk

Author

Rebekah McWhirter

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.[footnote* See, eg, Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218, 234, 309–10 (‘Marion’s Case’).] 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.[footnote* Rogers v Whitaker (1992) 175 CLR 479, 490.]

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