Doctors And Healthcare Providers – What Are Your Disclosure Obligations To Patients?

Author:Ms Joanelle O'Cleirigh, Jillian Conefrey and Laura Cawley
Profession:Arthur Cox
 
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A recent judgment of the High Court in the CervicalCheck litigation highlights the obligations on doctors and healthcare providers in respect of the disclosure of information to patients.

The case of Morrissey v the HSE serves as a reminder to doctors, healthcare providers, and professional medical bodies of the duty of doctors and healthcare providers to disclose information to patients. This obligation extends to the disclosure of general information in relation to a patient's condition, in addition to the duty to disclose risks in advance of a procedure in order to obtain informed consent from a patient.

Much has been written and discussed about disclosing risks to patients in order to obtain informed consent to treatment; this article considers the requirement to disclose information in relation to a medical condition generally.

DUTY OF CARE AND THE OBLIGATION TO PROVIDE INFORMATION

Prior to any treatment or procedure, doctors are required to provide a patient with information about the condition of which they suffer, including the nature of the condition, the options for treatment, the benefits and risks of treatment or non-treatment. This was endorsed by the Court of Appeal in Healy v Buckley in 2015:

"For the plaintiff's consent to have been informed she had to know and understand the nature of the condition for which she required treatment, the extent of her need for treatment, the options for treatment, what each treatment option entailed and the benefits and risks of adverse consequences attaching to each treatment option including that of doing nothing".

The "patient centred" approach to disclosing information to patients has been adopted by virtually every major common law jurisdiction.

DISCLOSURE TEST

A failure to warn a patient as to certain risks of their condition or proposed treatment could give rise to a possible breach of duty of care giving rise to a claim in negligence against a doctor.

According to the Supreme Court decision of Fitzpatrick v White, the courts favour a patient-centric approach with regard to disclosure of risks to patients: if there is a significant or material risk, which would affect the judgment of a reasonable patient, then in the normal course it is the responsibility of the doctor to inform the patient of that...

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