An Australian perspective on the doctor-patient relationship: a comparative prelude to examining duties of disclosure in surgical innovation.

Surgical innovation presents vital, albeit controversial, platform for scholarly discussion in health law and ethics. As recently observed in Lancet, (1) many crucial medical advances, including organ transplantation, hip replacement and substituting heart valves, could not have occurred without efforts of innovative surgeons. Nevertheless, achieving advances in biomedicine can also present substantial risks for patients, which may continue well beyond initial stage of innovation as practitioners acquire and perfect new skills. Conflicts of interests were flagged as particular point of contention, both with regard patients' interests as well as potential compromise integrity of innovation process itself. (2) Within such an enquiry about ethical limits of professional practice, it behoves us consider legal foundations of doctor-patient relationship upon which regulatory and theoretical frameworks might be erected reconcile conflicting interests, roles and duties of innovative surgeons in relation their patients. This article will review current Australian law on nature of doctor-patient relationship with view establishing point of departure for further discussion on how regulate innovation in surgical practice. (3) In providing this comparative perspective, it is submitted that neither approach is ultimately necessary. Arguably, rather than endorsing or opposing current state of law in Australia, aim should be reach beyond polarised legal paradigms and instead embrace more interdisciplinary response that aligns with modern theories of healthcare governance. In meanwhile, it is submitted that concise restatement of Australian position, contrasted with Canadian approach, can provide useful launching point for legal policy development. A. The Contractual Characterisation of Doctor-Patient Relationship The Australian characterisation of doctor-patient relationship derives from British common law tradition. Lord Scarman's ruling in Sidaway v Board of Governors of Bethlem Royal Hospital (4) stated it plainly: [t]he relationship between doctor and patient is contractual in origin, doctor performing services in consideration for lees payable by patient. (5) As such, doctor-patient relationship is essentially commercial transaction, namely, a private contract for supply of professional services. (6) In general terms, a doctor offers patient diagnosis, advice and treatment, objectives of which are the prolongation of life, restoration of patient full physical and mental health and alleviation of pain (7) While majority of contracts pertaining healthcare are not reduced formally in writing, this does not affect validity of agreement.(8) In vast body of cases that have required courts determine whether an alleged breach of doctor-patient contract occurred, existence of that contract has scarcely been in contention. Indeed, as noted by Lord Wilberforce in Liverpool City Council v Irwin, (9) function of courts has become to establish what contract is, parties not having themselves fully stated terms. (10) This is achieved by implying terms into healthcare contracts in accordance with legal principles outlined by Deane J in Hawkins v Clayton. (11) In Australia, there are five general requirements for legally enforceable contract: an intention create legal relations, an agreement (otherwise phrased as and acceptance), consideration (the exchange of something of value by parties), legal capacity (the capacity understand nature and effort of agreement) and genuine consent (wherein any instance of fraud or duress will void agreement). (12) Within context of healthcare, first three requirements are typically fulfilled by: (a) presumption that there is an intention create legal relations, given that services provided by health workers takes place in professional setting; (b) an assumption that patient has accepted health worker's offer receive services by opting receive treatment; and (c) where consideration may be a payment, or promise of payment, of reward of submission by patient, or an undertaking by patient submit, proposed treatment. …

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