Ries, Nola M --- "Choosing Wisely: Law's Contribution as a Cause of and a Cure for Unwise Healthcare Choices" [2017] UTSLRS 16; (2017) Journal of Law and Medicine

Last Updated: 28 August 2017

Choosing Wisely: Law’s Contribution as a
Cause of and a Cure for Unwise Healthcare Choices

Nola M Ries^[*]

Abstract

The provision of unnecessary healthcare is a serious problem in Australia and involves two key legal issues. First, doctors’ fear of litigation drives defensive practices – ordering tests and procedures, making referrals, and prescribing drugs to reduce perceived legal risks, rather than to advance patient care. Second, suboptimal communication and decision making processes undermine a patient’s right to make informed healthcare choices. This article critically analyses these problems and proposes solutions. An extensive body of medico-legal literature is synthesised to highlight gaps between legal requirements and what happens in practice. Negligence case law is discussed to clarify legal principles and show that courts discourage defensive practice. Finally, the article presents practical strategies to enhance communication and shared decision making in the clinical encounter.

I. Introduction

In 2015, the Choosing Wisely initiative was launched in Australia as part of a growing number of international campaigns to eliminate unnecessary and harmful healthcare interventions.^[1] Choosing Wisely involves health professional peak bodies producing lists of interventions that practitioners and patients should question or avoid, including various diagnostic and screening tests, drug therapies and other procedures.^[2] The initiative aims to promote conversations between clinicians and patients about the evidence base for healthcare options and encourage choices that reduce the provision of low or no value interventions. Indeed, a growing body of research reveals the extent of medical overuse, which is related to the problems of overtesting, overdiagnosis and overtreatment.^[3]

A recent study of ineffective care in Australia concludes that ‘thousands of patients get treatments that cannot help them. The consequences are serious. Their original health problem remains and the intended cure might make them sicker.’^[4] Diagnostic imaging services – X rays, CT scans, MRIs, ultrasounds - account for around 15% of Medicare costs ($3.1 billion) and at least 20% and up to half of those services may be unnecessary.^[5] Similarly, pathology testing is increasing by up to 10% each year in Australia and the need for some of this testing is questionable.^[6] Enthusiasm for cancer screening, including for breast, prostate and thyroid cancer, has resulted in overdiagnosis and unnecessary interventions in cases that, if left untreated, would not harm the person during their lifetime.^[7]

Polypharmacy – the concurrent use of five or more prescription medications – is a growing problem, especially among older Australians and is associated with adverse health outcomes, including harmful side effects and drug interactions.^[8] Between 20 to 50% of Australians aged 65 or over are estimated to take one or more potentially inappropriate medications^[9] and a five-year study of hospital admissions of older Australians found that nearly 44,000 admissions were due to preventable medication-related problems.^[10] Excessive medical intervention in the end of life period is a persistent problem with at least one-third of dying patients receiving non-beneficial treatments in hospital.^[11] In Australia, the cost of providing avoidable care in public hospitals is estimated to be at least $928 million.^[12] Internationally, overtreatment is said to have cost American healthcare payers somewhere between $158 billion and $226 billion in 2011.^[13]

Choosing Wisely has the potential to improve healthcare quality and safety and reduce the individual harms and system-wide waste of providing low value or unnecessary interventions.^[14] But its success depends on the extent to which it influences practitioner and patient behaviour; indeed, a ‘central goal ... is to change the culture of medical care that has historically supported overuse of unnecessary tests, treatments and procedures.’^[15] Socio-cognitive theory and behavioural research reveal that changing how clinicians practice is not as simple as issuing exhortations such as: “You should not order a scan for routine complaints of low back pain”^[16] or “Avoid prescribing antibiotics for upper respiratory tract infections.”^[17] Many forces influence the use of evidence in healthcare decision-making. These include factors at the micro level of the individual patient and practitioner, at the meso level of the organisational and practice environment, and the macro level of the market for health services and public policy influences.^[18] Saini and colleagues categorise the drivers of medical overuse into three domains: money and finance; knowledge, bias and uncertainty; and power and human relationships.^[19] The challenge is to identify the factors that are modifiable and target strategies to bring about desired changes.^[20]

At the level of the practitioner-patient relationship, two important legal issues are implicated in unwise healthcare choices: first, practitioners’ fear of litigation and second, suboptimal communication and decision making processes that neglect the patient’s right to make adequately informed choices. The Choosing Wisely campaign promotes the message that “Less is more”, yet clinicians may believe that doing less is more likely to result in a lawsuit or complaint by a disgruntled patient. This belief drives defensive medical practices, which occur when doctors order tests and procedures, make referrals, and prescribe drugs primarily to reduce the risk of lawsuits or complaints from patients, rather than to advance the patient’s diagnosis or treatment.^[21] The practitioner-patient relationship is based on a foundation of consent and adequately informed decision making: ‘all medical treatment is preceded by the patient's choice to undergo it. In legal terms, the patient’s consent to the treatment may be valid once he or she is informed ... [and chooses] on the basis of relevant information and advice.’^[22] This is vital to ensure ‘respect for the integrity of the patient and better health care.’^[23] Yet the legal ideal of an empowered patient making informed decisions is often not realised in practice.

The purpose of this article is to contribute a legal perspective to the problems of medical overuse and low value care. I critically analyse legal factors that drive unwise choices and argue that the law – properly understood and applied in practice – offers curative potential for unwise choices. Practitioners’ misapprehension of their legal duties and risks contributes to defensive medical practices; these misperceptions must be corrected to reduce the fear of legal liability as a driver of medical overuse. I synthesise relevant case law to demonstrate that courts are alive to the problems of defensive practice and do not impose negligence liability in every situation of missed or delayed diagnosis or conservative treatment. I then focus on a patient’s right to make informed choices and advocate for strategies to support effective communication and shared decision making in the clinical encounter. Ultimately, engaging in patient-centred communication to enable wiser healthcare choices is a better strategy than defensive medicine to minimise practitioners’ liability risks.^[24]

II. Law’s Contribution as a Driver of Unwise Choices

Defensive medicine

Within a clinical encounter, multiple factors influence the provision of unnecessary and low value care.^[25] These include practitioners’ and patients’ intolerance of uncertainty; a bias toward doing something over doing nothing (such as testing or treating instead of watchful waiting to see if symptoms abate)^[26]; clinicians’ tendency to overestimate the benefits of intervention and to underestimate harms^[27]; practitioner payment models and financial incentives, especially fee for service payments^[28]; oversupply of some practitioners^[29]; fragmented care; and patient expectations.^[30]

Practitioners’ fear of legal liability also contributes to unwise choices by driving defensive medical practices. An advisor to a major Australian medical defence organisation and medical indemnity insurance provider describes the pressures doctors face:

The problem now is that doctors are serving a community which has become more demanding and in which perfection seems to be expected. Furthermore, the profession is also being encouraged to be proactive in its efforts to screen for conditions ... What do doctors do in a litigious and more demanding environment? Well, they may do many things. [They want] to protect themselves against a complaint or negligence claim or against the fear of “missing” an unlikely or rare diagnosis. Ordering more tests is a logical consequence.^[31]

Surveys of doctors indicate that defensive practices are common,^[32] especially among certain medical specialists groups.^[33] In Australia, nearly 60% of general practitioner respondents to a 2015 survey said that the threat of litigation drives unnecessary care.^[34] An earlier survey of 3,000 doctors revealed specific behaviours driven by medicolegal fears, including referring patients to specialists (reported by 43% of respondents), ordering tests (55%) and prescribing medications (11%).^[35] Data from diverse countries - the United States,^[36] England,^[37] Japan,^[38] China,^[39] Israel^[40] and Austria^[41] – report that over 70% of doctors say they regularly engage in defensive medical practices.
That nearly three-quarters of doctors say they deliver healthcare services as a form of medico-legal protection suggests a misapprehension of the legal standards they are expected to meet and an exaggerated perception of the legal risks they face. Indeed, surveys of general practitioners and specialists in Australia and other countries find that doctors’ perceived risk of being sued is much higher than the actual risk and clinicians who practice defensively seem to perceive many patients as potential litigants.^[42] In New South Wales, for example, a study published in 2000 reported that nearly 70% of GP respondents believed they faced ‘a high likelihood of legal suit within the next five years.’^[43] Even after the subsequent enactment of NSW statutory reforms to limit negligence actions, a later survey found that a majority of GP respondents believed that lawsuits against doctors were increasing and over three-quarters of them ‘feared being liable for things out of their control’ even though the law does not impose a standard of perfection or demand infallibility.^[44]

Legal requirements

Physicians and other health practitioners have a legal duty to exercise a reasonable degree of care and skill.^[45] For a claim of negligence to succeed, a plaintiff must show factual causation and that liability ought to be applied in the circumstances.^[46] To establish factual causation, the patient must prove that a practitioner fell below the legally required standard of care owed to the patient and that the patient suffered reasonably foreseeable harm as a consequence.^[47] In considering the scope of liability, a court will consider ‘whether or not and why responsibility for the harm should be imposed on the’ practitioner.^[48] This latter provision allows courts to consider policy and normative arguments.^[49]

A common reason cited for defensive practice is that clinicians fear liability for a missed diagnosis or delayed treatment. However, courts and disciplinary bodies consider the full clinical context when determining whether a practitioner acted reasonably in accordance with commonly accepted practice. The law tolerates ‘error[s] of judgment where the medical practitioner acts with care and diligence, but simply makes a wrong decision.’^[50] A practitioner, acting with due care and skill, can make a decision supported by prevailing evidence and practice that is later shown to have been mistaken: ‘In identifying whether a medical practitioner has acted carelessly, the assessment must be undertaken without the benefit of hindsight, and must be determined from the nature of the conduct and not from its consequences.’^[51]

Doctors who defensively order tests, give treatments or make referrals are motivated by worry that if they fail to do so, some harm may materialise for their patients, who may then pursue legal redress. Yet legal standards require that a doctor act reasonably, not infallibly, in taking precautionary measures to reduce the risk of harm. For example, the NSW Civil Liability Act states that a ‘person is not negligent in failing to take precautions against a risk of harm unless’ several criteria are met.^[52] The risk must be foreseeable (one that a doctor know or ought to know about), it must not be insignificant, and a reasonable peer in the doctor’s position would have taken the precautions. In determining the latter point, a court will consider factors such as the probability of the risk materialising, the serious of the harm, and the burdens involved in taking precautions.^[53]

Case examples

A recent case example illustrates the application of these factors where a patient alleged a doctor was negligent in failing to mitigate a risk of harm. In a 2016 NSW Supreme Court decision, a cardiologist was found to have acted in accordance with reasonable medical practice in a situation where a patient’s undetected heart malformation led to a stroke and permanent disability.^[54] The patient had a patent foramen ovale, a hole in the heart that often causes no problems and may be left untreated if identified. The Court rejected the claim that the specialist was negligent in not ordering an electrocardiogram (ECG). The patient’s clinical situation did not warrant an ECG since her complaints of episodes of dizziness and visual disturbances were reasonably attributed to migraine headaches. Moreover, even if an ECG had been performed and the patent foramen ovale detected earlier, the specialist would not have recommended drugs or surgery as the risks of such treatments could well outweigh the expected benefits. The Court noted that an aggressive approach of diagnostic imaging and follow-up treatment ‘could lead to ...unnecessary intervention – by further testing, by surgical corrective procedure or by prescription of medicine, all of which would carry their own risks for the patient.’^[55]
Another recent NSW Supreme Court decision, Coote v Kelly, dealt with an alleged delay in a cancer diagnosis.^[56] For over a year, a doctor treated a lesion on a patient’s foot as a plantar wart. A subsequent change in size and colour of the lesion prompted another doctor to order a biopsy and a malignant melanoma was diagnosed. The patient died two years later from metastatic cancer. The Court dismissed the negligence claim, concluding that the doctor had acted reasonably in his care as the lesion had the appearance of a plantar wart. In any event, the claim would fail on the element of causation as it could not be determined when the melanoma first appeared and when it metastasised.

A disciplinary tribunal case, Medical Board of Western Australia and Richards,^[57] concerned an allegation that a GP acted carelessly in not referring for further investigation a 33 year-old patient who reported rectal bleeding. In the absence of a worrisome family history or signs of more serious conditions like cancer or inflammatory bowel disease, the doctor attributed the bleeding to haemorrhoids or an anal fissure. She took a watch and wait approach and did not order a colonoscopy or refer the patient to a gastroenterologist. The patient was later found to have rectal cancer. The Medical Board concluded that the GP had not acted carelessly and accepted expert testimony that ‘[t]o “wait and see how the disease process evolves” is a technique that is correctly used by competent practitioners on a daily basis. ... the alternative of progressively investigating every presentation would be a costly and wasteful process that would not ... constitute good general practice.’^[58] Moreover, a defensive approach of referring patients for investigations ‘to rule out every possible sinister cause in every possible patient every time you see them’ is not good medical practice. ^[59]

Another expert elaborated:

In general practice, there are relatively few clinical presentations where there is near certainty in the diagnosis. For many common presentations, the patient's description of the illness, coupled with the doctor's understanding of the pattern of disease in the community, allows the doctor to arrive at the most likely diagnoses and to discount those which appear highly unlikely. Investigations are then chosen on the basis of those probable diagnoses. It is simply not possible to investigate all symptoms to the point of absolute certainty ­ the health system and the budget would collapse under the weight of a huge increase in investigations, with a clearly unfavourable cost­benefit analysis. Diagnosis therefore comprises a constant tension between under­investigation, and missing serious diagnoses, and over­investigation, exposing the patient to unnecessary risk and unnecessary procedures. In most clinical encounters there remains an element of uncertainty.^[60]

Courts have also disregarded expert opinion advocating a standard of care that could drive unnecessary interventions. For instance, in a Western Australian case, a man consulted three medical practitioners in relation to headaches and argued he should have been referred for a brain CT scan. He ultimately experienced brain injury from the haemorrhage of an arteriovenous malformation (AVM). The judge accepted evidence that headaches are a common complaint but AVM are very rare. One expert witness ‘subscribed to an extremely pro-active principle involving the early use of radiology,’ however this view was not persuasive as it did not have wide support among medical practitioners.^[61] In another case, the Court commented that the ready availability of a screening or diagnostic procedure does not mean it should be used.^[62] The decision to use a medically available procedure or therapy must be based on a reasonable determination that it would assist in diagnosis or treatment and courts do not want to encourage ‘gratuitous screening for an occasional rare condition.’^[63]

A 2002 case alleged a delayed diagnosis of a rare soft tissue tumour (sarcoma) where the initial symptom was a small lump in the patient’s shoulder that the GP thought might be scar tissue or a hematoma (swelling of clotted blood in the tissue). Opining that the GP acted reasonably in not referring the patient for immediate biopsy, one expert stated:

... most people have lumps and bumps, but they are usually benign. If we were to take out every pea sized lump that a patient had, it would collapse the medical system ... it would be over-treatment. It would cause a lot of unnecessary surgery, a lot of unnecessary anxiety, a lot of unnecessary scarring. We have to use our clinical judgment...^[64]

He acknowledged that defensive practices can allay a practitioner’s fears but can be detrimental for patients: if doctors ‘practised defensive medicine and said [this could be cancer] to everything, it would make us sleep at night. But the patients would be totally anxious if we did that. ... To say to a patient every time they walk in the room that [a lump] could be cancer, I think is inappropriate medicine.’^[65]

As these decisions illustrate, the law does not set a standard that requires doctors to assume the worst and intervene aggressively for symptoms that can be reasonably attributed to a less serious cause.^[66] Legal liability for missed or delayed diagnoses is more likely to arise in situations where a doctor repeatedly ignores unexplained signs of a more serious medical problem. In Dobler v Halverson,^[67] a general medical practitioner was found negligent for failing to order an ECG and refer a patient to a cardiologist. The case involved repeated interactions with an adolescent over a period of six years during which the patient experienced three instances of loss of consciousness (syncope) and migraines and the doctor detected a heart murmur. The GP arranged various tests and a neurology referral, but did not pursue possible cardiac issues. Expert medical opinion asserted that the patient’s history warranted an ECG and cardiology referral. One expert was of the view that an ECG should be performed on any person who has experienced a loss of consciousness. The judge observed that this position may be ‘overcautious’ but held that failing to organise an ECG after three syncopal episodes fell below a reasonable standard of care.^[68]

In Paul v Cooke,^[69] the patient, Mrs Paul, sued a radiologist, Dr Cooke, for failing to diagnose a brain aneurysm. It was later identified and she underwent treatment, but had a stroke during the procedure and suffered permanent brain damage. She argued that had she been diagnosed earlier, she would have been eligible for a different treatment that carried less risk. The NSW Court of Appeal found that Dr Cooke had breached his duty to his patient but there was no causal relationship between this breach and the harm she experienced. The evidence established the aneurysm had not changed or become more likely to rupture during the period of delayed diagnosis. The risks associated with the treatment options also had not changed during that time and there was only a 1-2% chance of a rupture in the procedure available in 2003 and the one that Mrs Paul underwent in 2006. In short, Dr Cooke had breached his duty of care by failing to diagnose the aneurysm, but was not responsible for the stroke.

Loss of a chance of a better outcome

In some negligence claims that allege a delay in diagnosis and treatment, the harm claimed is a loss of a chance for a better medical outcome. The better outcome may be a chance at a cure, a prolongation of life, or a reduction in the severity of harm experienced (that is, some degree of harm is inevitable due to the underlying disease, but is worsened by a delay in diagnosis or treatment). However, a mere possibility – that is, a less than 50% chance - of a patient avoiding an adverse health outcome does not amount to actionable damage in a negligence claim.

In the 2010 decision of Tabet v Gett, the High Court of Australia rejected loss of chance claims that involve speculation about the possibility of a better outcome.^[70] In this case, six-year-old Reema Tabet had an undetected brain tumour. She contracted chicken pox and was admitted to hospital with symptoms of headaches, nausea and vomiting. Dr Gett, a paediatrician, was concerned about meningitis or encephalitis. He ordered a CT scan two days later after the child suffered a seizure and the brain tumour was identified. She had urgent surgery but was left with permanent brain damage. Tabet argued the doctor was negligent in failing to order a CT scan on the day of her admission and that this failure deprived her of a chance of a better outcome. An earlier scan would have prompted earlier treatment, including the use of steroids to reduce intracranial pressure, and thus given her a chance of less severe brain damage. Estimating the benefit of steroidal treatment was, however, ‘absolutely a guess [and] entirely speculative.’^[71] Some degree of brain damage was inevitable due to the tumour.

In a negligence action claiming a loss of chance, a plaintiff’s current position is compared with the position he or she would have been in had the defendant not been negligent. For the claim to succeed, it must be more likely than not that the negligent conduct caused the plaintiff’s harm. A health practitioner ‘should not be held liable where what is said to have been lost was the possibility (as distinct from probability) that ... damage suffered ... would have been less severe than it was.’^[72]
As a policy consideration against compensating speculative loss of chance claims, the High Court expressed concern about ‘the prospect of “defensive medicine” with emphasis upon costly testing procedures in preference to a sequential deductive approach to diagnosis and treatment.’^[73]

Who does get sued?

A growing body of empirical evidence describes a “claim prone” physician and this data can help dispel the misperception that lawsuits and complaints are a pervasive threat for all medical practitioners. An analysis of 11 years of complaints data for Australian doctors found that ‘3% of Australia’s medical workforce accounted for 49% of complaints and 1% accounted for a quarter of complaints.’^[74] The greatest predictor of being the subject of a complaint is poor communication, a finding consistent with research elsewhere.^[75] The study reports that common communication-related allegations are failing to obtain an adequate history and not creating and discussing a suitable follow-up plan. Doctors who are the subject of complaints also face allegations related to diagnostic testing, including failing to correctly interpret test results and failing to order an appropriate test. However, failures to order clinically indicated tests are not corrected by engaging in inappropriate diagnostic testing. Inappropriate screening can lead to negligent false-positive diagnoses where a patient is wrongly diagnosed and then exposed to the risks involved in follow up interventions.^[76]

Instead of practicing defensively and wastefully by ordering more tests and treatments, clinicians can more effectively reduce their risk of legal complaint by adopting better communication techniques: ‘Litigation risk can be significantly reduced by good communication not only with the patient and family but also with other healthcare practitioners, keeping good clinical notes, careful follow-up, and showing that you care.’^[77] The complaints data also provides a foundation for proactively identifying and offering targeted assistance to the minority of doctors who account for many of the complaints. A recent study of claims against over 50,000 American doctors shows that ‘a relatively small group of U.S. physicians accounted for a disproportionately large share of paid malpractice claims’ and the distinctive characteristics of this cohort support targeted risk reduction interventions, such as training and peer counseling.^[78]


Part III. Law’s Curative Potential – Consent, Communication and Informed Decisions

The Choosing Wisely campaign seeks to reduce the provision of low value care by encouraging clinicians and patients to discuss the most appropriate use of tests and treatments. A reasonable patient presumably wants to know the evidence for and against the interventions available to them.^[79] As Glasziou and colleagues recommend, one way to reduce medical overuse is through better communication and shared decision-making.^[80] It is a long-established principle that people with decisional capacity have the right to make their own choices about medical interventions. In Schloendorff v Society of New York Hospital, Cardozo J famously wrote that ‘[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body.’ ^[81] This principle has been adopted in Australian law, with the High Court affirming in Wallace v Kam that a patient has the right ‘to choose whether or not to undergo a proposed treatment.’^[82]

In Rogers v Whitaker,^[83] the Court articulated practitioners’ legal obligations in the provision of information and advice to patients, including the duty to disclose the foreseeable, material risks of treatment options. The Court explained that ‘a risk is material if, in the circumstances of the particular case, a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it.’^[84] Thus, the duty to inform has proactive and reactive aspects.^[85] A doctor has a proactive duty to provide information that a reasonable patient would want to know (an objective component), as well as a reactive duty to respond to the specific needs of the patient, taking into account factors such as the patient’s education, employment, personal relationships and responsibilities, and responding to questions that reveal the patient’s values, goals, concerns and tolerance of risk (a subjective component). The law envisions a situation where a patient, properly informed of their treatment options and the relevant benefits and risks, makes a decision in accordance with their values and preferences.

This process of communication is vital to enabling an individual to exercise their right to make informed choices about their care and what is done to their body. Yet, analyses of clinician-patient encounters indicate ‘that physicians rarely meet even minimal standards of disclosure’ leading to the conclusion that consent, while ‘a vital part of contemporary medical practice, ... is variably practised and rarely achieves the theoretical ideal.’^[86] As with the Choosing Wisely recommendations, a legal exhortation alone – “You must ‘consent’ your patients” – is not enough to bring about desired behaviour.^[87] Attitudes, beliefs and unconscious habits can account for the gap between what the law requires and what happens in practice. These include the therapeutic illusion, misapprehending consent requirements, and unconscious habits, all of which need to be addressed as barriers to effective communication and decision making processes.

First, the “therapeutic illusion” means many practitioners emphasise the benefits of treatment, downplay risks and avoid dealing with uncertainties in clinical decisions.^[88] This is a particular problem for commonly (over)used screening tests and medications. A national survey in the US investigated the extent of patient involvement in ten common medical decisions, including screening for colon, breast and prostate cancer, going on hypertension medication, and having surgery for low back pain.^[89] The study revealed that doctors focus more on benefits than risks, especially for initiating medications and cancer screening, and discussions with patients do not reflect a high degree of shared decision making. A recent Australian survey indicates that only around 10 to 20% of people, including those who have had common types of cancer screening, report that a doctor told them about the risks of overdiagnosis.^[90]

When asked, many patients cannot identify harms of commonly overused screening tests^[91] - not surprising if their care providers stress the benefits – but patients also say they want to be better informed. An interview-based study in the US reported that ‘[m]any patients expressed a desire for a discussion with their physicians regarding the benefits and harms of screening rather than receiving a simple recommendation.’^[92] An overwhelming majority (93%) of respondents to an Australian survey on cancer screening stated that both the benefits of screening and the risks of over-diagnosis should be discussed. ^[93]

Second, practitioners’ may misapprehend their legal duty to inform and the purpose behind it, perceiving consent requirements as overly burdensome for them and their patients. A survey of Australian doctors following the landmark Rogers v Whitaker ruling investigated their understanding of consent requirements; surprisingly, around 40% of the respondents believed they had to tell patients of all possible risks or outcomes, not just material risks that are reasonably foreseeable.^[94] Thinking they must meet a nearly impossible disclosure standard produced hostile attitudes about providing information to patients and some doctors relied on questionable therapeutic privilege grounds to withhold information from patients.

Further, some clinicians are concerned about burdening patients with decision making in the face of medical uncertainty or complexity. Johansson and colleagues worry about ‘pushing responsibility on to often ill prepared citizens’^[95] and argue ‘there is a risk that informed choice transfers responsibility for treatment harms from the health professional the patient. This presents a great ethical difficulty, particularly when not all facts have been provided or understood or when facts have been presented in a skewed paternalistic manner to promote a certain choice.’^[96] As long as material information is presented in a manner that allows patients to make informed decisions based on their values and circumstances, it is not legally problematic that they assume responsibility for that choice. A patient has the right to make an informed choice to forego intervention with the knowledge that there may be a chance of a problem going undetected or untreated: ‘A patient, duly warned about [options and risks], must accept them and their consequences.’^[97] A patient ‘should not be compensated for the materialisation of a risk he would have been prepared to accept.’^[98]

Third, some research indicates that doctors’ overuse of tests and treatments is driven by habitual patterns of practice, instead of individualised, patient-centered discussion and decision-making.^[99] Hall and colleagues point out that practitioners must be aware of and counter their biases toward recommending particular interventions without adequate patient discussion: ‘Informed consent also demands maturity and self-awareness on the provider’s part to resist the temptation to abandon (or subconsciously subvert) the difficult task of shared decision-making.’^[100] For instance, a study of urologists and radiation oncologists ‘showed the unconscious bias of each discipline to its own mode of treatment for a hypothetical case of localized prostate cancer, even though the evidence favoured watchful waiting.’^[101] It is recommended that ‘[e]fforts to address overuse should consider the possibility that it is concentrated among physicians who practice in repetitive ways, relatively uninfluenced by the patient.’^[102] This recommendation resonates with the empirical evidence that a small population of physicians accounts for a majority of litigation and complaints.

Finally, deferential or cynical attitudes and beliefs on the part of patients may also be barriers in consent discussions. Some patients ‘understand the consent process as a routine in which they are expected to enact a role that has already been scripted by doctors in the interest of doctors.’^[103]
They may believe they should leave the choice to the doctor or that they must simply agree with the course of action the doctor presents to them.^[104]



IV. Getting to Wiser Choices

Colla and colleagues point out that each of the drivers of low value care ‘requires a unique set of policy interventions’^[105] and I propose here practical strategies to enhance the provision of appropriate care in accordance with expected legal standards. Misperceptions about liability risks and the legal expectations for information disclosure need to be corrected with accurate guidance about what the law requires. Educational interventions directed at practitioners must be combined with practical tools to support effective communication and decision-making in clinical encounters.


Improve knowledge of the law and legal requirements

Lack of knowledge is a barrier to desired professional behaviour and must be remedied.^[106] Persistent fears about liability will undermine other initiatives that aim to support wiser choices. In particular, clinicians need reassurance that doing less will not increase their legal liability risks. Regulatory bodies, professional associations and medical defence organisations can complement the Choosing Wisely initiative by providing guidance to practitioners on legal standards and expectations. For example, educational materials and continuing professional development resources could summarise the kind of analysis presented in Part II of this article, including judicial acknowledgement of the problems of defensive medicine. Clinicians should also be educated that they face legal risks in practicing defensively and providing interventions for reasons other than advancing the patient’s diagnosis and treatment. They could face complaints of overservicing or negligence claims if they do not adequately present risk information and reasonable options that have a lower chance of harm.^[107] The Choosing Wisely recommendations can assist clinicians in having evidence-informed conversations with patients. They may also be helpful as evidence about the standard of care should the clinician face a claim alleging delayed diagnosis or treatment when they followed a more conservative course of action consistent with Choosing Wisely recommendations.^[108]

Clinicians also need supports to understand and meet their duties to provide adequate advice and information to patients. Importantly, the problem identified by Ripley and colleagues must be countered: ‘Too often, health care providers focus on informed consent as a protection from litigation or as a legal formality and not as an opportunity to partner with the patient to ensure the best outcome.’^[109] The rejection of the Bolam principle in Rogers v Whitaker set the legal precedent for a clinician-patient relationship premised on partnership, not paternalism.^[110] The Australian Medical Association Code of Ethics explicitly adopts this view, stating that ‘[t]he doctor-patient relationship is a partnership based on mutual respect, collaboration and trust.’^[111] A 2015 landmark medical consent decision from the UK Supreme Court explicates the changing context of the clinician-patient relationship that is equally relevant to Australia:

[Various] social and legal developments ... point away from a model of the relationship between the doctor and the patient based upon medical paternalism. They also point away from a model based upon a view of the patient as being entirely dependent on information provided by the doctor. What they point towards is an approach to the law which, instead of treating patients as placing themselves in the hands of their doctors (and thus being prone to sue their doctors in the event of a disappointing outcome), treats them so far as possible as adults who are capable of understanding that medical treatment is uncertain of success and may involve risks, accepting responsibility for the taking of risks affecting their own lives, and living with the consequences of their decisions.^[112]

Effective communication and shared decision making

The law sets out what needs to happen and the principles that underlie the legal standard; that is, to respect patients’ rights to autonomy and choice the practitioner must provide material information and advice. The law does not prescribe how this should happen and the High Court acknowledges that ‘the skill is in communicating the relevant information to the patient’^[113] in a way that fosters understanding and informed decision making. To give meaning to a partnership relationship and to meet legal consent requirements, practitioners must adopt ‘a consistent practice of involving patients in decisions.’^[114] As Gillett and Walker argue, ‘[t]he patient and provider must partner in the problem-solving exercise that is health care. When this partnership functions properly, informed consent remains in harmony with the therapeutic goal of medicine, and the process is generally much more satisfactory to both parties.’^[115]

Interestingly, a recent US study of public views about Choosing Wisely and low value care revealed that ‘most of the respondents expected that if clinicians were doing less testing and treatment, they might turn their attention to something else more valuable—and the majority anticipated that this would involve more extensive or responsive interactions with patients.’^[116] The respondents identified two benefits: ‘First, they expected that spending less time ordering and reading tests would allow clinicians more time to talk with their patients. Second, they projected that taking a more mindful, less routinized approach to testing would encourage discussion of the benefits and limitations of each approach and greater acknowledgment of clinical uncertainty.’^[117] These findings suggest that, from the patient’s point of view, better communication and decision making processes are clearly connected to reducing the problem of medical overuse.

Shared decision making (SDM), ‘the crux of patient-centred care,’^[118] is a process by which a patient makes a healthcare choice with their care provider and is distinguished from an approach where a practitioner more or less unilaterally presents a course of action with little explanation and dialogue with the patient. SDM involves several key elements that correspond in large measure to the requirements for sufficiently informed consent, including: defining and explaining the health problem; presenting options; discussing pros and cons; eliciting the patients’ values and preferences; checking the patient’s understanding of the information; and reaching a decision.^[119]

Some commentators – notably American – contend that SDM ultimately has a different purpose than informed consent. They characterise the aim of consent as medico-legal protection through disclosure to patients while SDM aims to meet patient needs through discussion with them about their preferences.^[120] This view, perhaps influenced by American statutes that establish a physician-centred disclosure standard for consent, represents an impoverished view of consent and runs counter to the goal of consent as ‘a two-way process in which the patient is (or should be) the active partner in giving consent to treatment.’^[121]

Indeed, SDM is desirable for many reasons; it gives effect to the patient’s right to choose what happens to them, can reduce the overuse of low value interventions, and improves the uptake of beneficial care.^[122] SDM is not just for patients with higher literacy; suitably designed SDM tools improve knowledge and informed decision making for patients who experience disadvantage due to poor literacy, lower socioeconomic status and older age.^[123] Despite these advantages, SDM has not been widely adopted in practice and more work is needed to eliminate the barriers to its uptake.^[124] To pre-empt practitioners’ concern that SDM is not feasible in busy clinical settings, it is important to note that SDM ‘does not advocate deliberation in every interaction or for every decision—that would be impractical. Rather, a deliberative approach is suggested where the existence of reasonable alternatives’^[125] requires weighing information and making a choice.

SDM is premised on patients having access to evidence and guidance to inform decisions. It involves specific communication and engagement behaviours on the part of both clinicians and patients that can be learned and facilitated through tools such as decision aids.^[126] A variety of aids targeted to patients, doctors or both, can assist with screening and treatment decisions, including written information sheets, videos and interactive websites.^[127] As Légaré et al explain:

Decision aids can be used when there is more than one reasonable option, when no option has a clear advantage in terms of health outcomes, and when each option has benefits and harms that patients may value differently. ... They make the decision explicit, describe the options available, and help people to understand these options as well as their possible benefits and harms. This helps patients to consider the options from a personal view (e.g., how important the possible benefits and harms are to them) and helps them to participate with their health practitioner in making a decision.^[128]

Some practitioners perceive that SDM will require longer and more costly appointments, however decision aids can support time-efficient communication.^[129] Further, the task of conveying information to patients need not rest solely with medical practitioners. Schenker and Meisel point out that ‘[i]n reality, physician-led informed consent discussions are often ill-timed or ineffective. ... A busy gastroenterologist, for example, may perform 20 endoscopic procedures (accompanied by 20 informed consent discussions) in one day. Is it any wonder that such discussions are less often individualized or patient centered, and more often memorized and rushed recitations...?’^[130] Trained health educators, such as nursing and allied health practitioners, can deliver group information sessions for patients and conduct individual consultations with more time to discuss the patient’s concerns and preferred care plan.^[131] Physician time can then be allocated to reviewing the plan with the patient to address any outstanding issues. Carried out appropriately, these interprofessional collaborative models can improve patient care and reduce liability risks.^[132]

The UK Montgomery decision is notable in recognising the potential role for technology in facilitating informed decision making and supporting patients as active agents in their own healthcare:

it has become far easier, and far more common, for members of the public to obtain information about symptoms, investigations, treatment options, risks and side-effects via such media as the internet (where, although the information available is of variable quality, reliable sources of information can readily be found), patient support groups, and leaflets issued by healthcare institutions. ... It would therefore be a mistake to view patients as uninformed, incapable of understanding medical matters, or wholly dependent upon a flow of information from doctors. ^[133]

Interactive online aids can provide plain language information based on current evidence, including details tailored to the patient’s circumstances.^[134] Mark Harris recently argued that the MyHealth electronic health record system,^[135] available for all Australians, can be used for patient engagement and communication, including ‘prompts for preventive care and tools for health risk assessment.’^[136] In the US, the computer-based iMedConsent program, used in the Department of Veterans Affairs health system for over a decade, has been found to increase patients’ comprehension of treatment options, risks and benefits and encourages their active participation in healthcare decisions.^[137] With careful patient-centred design and communication strategies to encourage uptake, people are amenable to using online systems for health related self-learning and self-management.^[138]

Decision aid tools can help overcome the challenges of dealing with risk information and complex decision making in the clinical encounter. Both doctors and patients tend to have low comprehension of risk information.^[139] Clinicians perceive that patients will not accept more cautious approaches, such as watchful waiting, and report that ‘many patients believe that more health care is better than less health care’.^[140] However, clinicians can adopt proven strategies to engage in brief conversations to help patients understand risk issues.^[141] A nationally representative survey in Australia shows that at least half the population has a general understanding of the concept of overdiagnosis, suggesting an ‘encouraging though limited reservoir of community recognition of the potential dangers of excess.’^[142] Clinicians can appeal to and develop this awareness in having conversations with patients about the harms of screening and treatment. A recent survey of primary care patients in Canada found that Choosing Wisely educational materials improved their knowledge about low value services and a majority of participants indicated a willingness to de-adopt low value medical interventions.^[143]

As a final benefit of SDM to note, Posner and colleagues point out that healthcare organisations currently expend significant sums dealing with patient complaints about poor practitioner communication.^[144] They make a cogent argument that ‘complaint resolution represents an unrecognized cost as well as an underappreciated opportunity for reducing waste in healthcare’ and advocate SDM to mitigate these costs and reduce the risk of negligence actions following from unresolved complaints. Existing studies of SDM mostly assess shorter-term outcomes, such as increased knowledge and reduced decisional conflict, and future work should examine a broader range of outcomes, including improvements in patient experiences of healthcare and fewer complaints against practitioners.^[145]


V. Conclusion

Adam Elshaug and colleagues argue powerfully that there is ‘a moral imperative and a political duty’ to reduce the individual and social harms of medical overuse.’^[146] They envision a ‘transformed health system’ where ‘patients can expect to be informed and involved in choices about their care’ and clinicians ‘feel supported by health, political, and legal systems’ to provide appropriate, evidence-informed care.^[147] Bringing a legal perspective to this problem, I contend that a transformation of the law is not needed. Legal principles provide a solid foundation for wiser choices and change instead is needed to align clinicians’ perceptions and practices with the law. Defensive medical practices and formalistic approaches to “consenting” the patient are not the route to effective, person-centred care. A partnership model that uses shared decision making techniques will improve patients’ experience of care, support informed decision-making and reduce clinicians’ risk of legal claims. Educational, communication and shared decision making strategies can ultimately help bridge the gap between legal principles and actual practice in the clinician-patient relationship and, in doing so, align the health system goals of reducing low value and wasteful interventions with clinicians’ desire to deliver good care and patients’ wishes to have the information and support they need.

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^[*] Associate Professor, Faculty of Law, University of Technology Sydney. The author undertook the research and writing of this article as part of a 2015-2016 Australian Fellowship in Health Services Research and Policy. The ideas and arguments presented here benefited from the insights of other Fellows, as well as Faculty members of the Centre for Health Economics Research and Evaluation, University of Technology Sydney. Helpful research assistance was provided by Briony Johnston, PhD candidate, School of Law, University of Newcastle.
^[1] NPS MedicineWise, Media Release, ‘Choosing Wisely Australia launching in 2015’ <http://www.nps.org.au/media-centre/media-releases/repository/choosing-wisely-australia-launching-in-2015> Wendy Levinson et al, ‘Choosing Wisely’: A Growing International Campaign’ (2015) 24(2) BMJ Quality and Safety 167. Initiatives similar to Choosing Wisely include the British Medical Journal’s ‘Too Much Medicine’ program <http://www.bmj.com/too-much-medicine> and the Slow Medicine movement <http://www.slowmedicine.info> .
^[2] Choosing Wisely Australia <http://www.choosingwisely.org.au/home> .
^[3] I adopt the definitions from Adam G Elshaug et al, ‘Levers for Addressing Medical Overuse and Overuse: Achieving High-Value Health Care’ (2017) The Lancet, epub ahead of print <http://www.sciencedirect.com/science/article/pii/S0140673616325867> (at p 2):

Overuse – Provision of a service that is unlikely to increase the quality or quantity of life, that poses more harm than benefit, or that patients who were fully informed of its potential benefits and harms would not have wanted.

Low-value care – An intervention in which evidence suggests it confers no or very little benefit for patients, or risk of harm exceeds probably benefit, or, more broadly, the added costs of the intervention do not provide proportional added benefits.
See also Shannon Brownlee et al, ‘Evidence for Overuse of Medical Services Around the World’ (2017) Lancet, epub ahead of print <http://www.sciencedirect.com/science/article/pii/S0140673616325855> . Overdiagnosis occurs ‘when a diagnostic label is applied to people with mild symptoms or at very low risk of future illness, for whom the label and subsequent treatment may do more harm than good.’ Ray Moynihan, David Henry and Karel GM Moons, ‘Using Evidence to Combat Overdiagnosis and Overtreatment: Evaluating Treatments, Tests, and Disease Definitions in the Time of Too Much’ (2014) PLoS Medicine <http://dx.doi.org/10.1371/journal.pmed.1001655> . There has been debate about defining ‘overdiagnosis’, a topic beyond the scope of this paper, but see e.g. Stacy M Carter, Chris Degeling, Jenny Doust and Alexandra Barratt, ‘A Definition and Ethical Evaluation of Overdiagnosis’ (2016) 42(11) Journal of Medical Ethics 705; Wendy A Rogers and Yishai Mintzker, ‘Getting Clearer on Overdiagnosis” (2016) 22(4) Journal of Evaluation in Clinical Practice 580.
^[4] Stephen Duckett & Peter Breadon, Questionable Care: Avoiding Ineffective Treatment (Grattan Institute, 2015), <https://grattan.edu.au/wp-content/uploads/2015/08/828-Questionable-Care3.pdf>. Examples of common, inappropriate treatments include knee arthroscopy for osteoarthritis, vertebroplasty for osteoporotic fractures in the spine, and hyperbaric oxygen therapy for conditions such as cancer.
^[5] Australian National Audit Office, Diagnostic Imaging Reforms (December 2014), <https://www.anao.gov.au/work/performance-audit/diagnostic-imaging-reforms>.
^[6] National Coalition of Public Pathology, Encouraging Quality Pathology Ordering in Australia’s Public Hospitals (February 2012), <http://www.ncopp.org.au/UserFiles/file/NCOPP%20QUPP%20Project%20Final%20Report%20%28web%29.pdf> .
^[7] Peter C Gøtzsche and Karsten Juhl Jørgensen, ‘Screening for Breast Cancer with Mammography’ (2013) 6 Cochrane Database of Systematic Reviews, DOI: 10.1002/14651858.CD001877.pub5; D Ilic et al, ‘Screening for Prostate Cancer’ (2013) 1 Cochrane Database of Systematic Reviews, DOI: 10.1002/14651858.CD004720.pub3. Salvatore Vaccarella et al, ‘Worldwide Thyroid-Cancer Epidemic? The Increasing Impact of Overdiagnosis’ (2016) 375(7) New England Journal of Medicine 614. The authors note (at 617) that a ‘vast majority of patients who received a diagnosis of thyroid cancer in the countries [they] studied underwent total thyroidectomy, and a high proportion also received other harmful treatments’ such as radiation therapy. Afshin Aslani et al, ‘The Impact of Recent Screening Recommendations on Prostate Cancer Screening in a Large Health Care System’ (2014) 191(6) Journal of Urology 1737; Luis Furuya-Kanamori et al, Prevalence of Differentiated Thyroid Cancer in Autopsy Studies Over Six Decades: A Meta-Analysis (2016) 34(3) Journal of Clinical Oncology 3672 (reporting a three- to 15-fold increase in thyroid cancer cases in recent decades due to overdiagnosis; a majority of such cancers will not produce symptoms in the patient’s lifetime).
^[8] Ruth E Hubbard et al, ‘Polypharmacy Among Inpatients aged 70 Years or Older in Australia’ (2015) 202(7) Medical Journal of Australia 373.
^[9] K Anderson, C Freeman, D Stowasser and I Scott, ‘Prescriber Barriers and Enablers to Minimising Potentially Inappropriate Medications in Adults: A Systematic Review and Thematic Synthesis’ (2014) 4 BMJ Open e006544.
^[10] Lisa M Kalisch et al, ‘Prevalence of Preventable Medication-Related Hospitalizations in Australia: An Opportunity to Reduce Harm’ (2012) 24 International Journal for Quality in Health Care 239.
^[11] M Cardona-Morrell et al, ‘Non-beneficial Treatments in Hospital at the End of Life: A Systematic Review on the Extent of the Problem’ (2016) International Journal for Quality in Health Care 1. Non-beneficial treatments included the administration of antibiotics, dialysis, radiation therapy and various other interventions.
^[12] Stephen Duckett and Peter Breadon, Controlling Costly Care: A Billion-Dollar Hospital Opportunity (Grattan Institute, 2014) <https://grattan.edu.au/wp-content/uploads/2014/03/806-costly-care.pdf>.
^[13] Diana J Mason, ‘Choosing Wisely: Changing Clinicians, Patients, or Policies?’ (2015) 313(7) Journal of the American Medical Association 657.
^[14] Jeanne Lenzer, ‘Choosing Wisely: Setbacks and Progress’ (2015) 351 British Medical Journal h6760; Amanda Kost, Inginia Genao, Jay W Lee and Stephen R Smith, ‘Clinical Decisions Made in Primary Care Clinics Before and After Choosing Wisely’ (2015) 28 Journal of the American Board of Family Medicine 471.
^[15] Levinson et al, above n 1.
^[16] See Choosing Wisely recommendation of the Royal Australian and New Zealand College of Radiologists:
<http://www.choosingwisely.org.au/recommendations/ranzcr> .
^[17] See Choosing Wisely recommendation of the Australasian Society for Infectious Diseases: <http://www.choosingwisely.org.au/recommendations/asid> .
^[18] James D Reschovsky, Eugene C Rich and Timothy K Lake, ‘Factors Contributing to Variations in Physicians’ Use of Evidence at the Point of Care: A Conceptual Model’ (2015) 30(Suppl3) Journal of General Internal Medicine S555. Behavioural researchers have distilled the factors that influence and drive behaviour into key domains that include knowledge, skills, social and professional role and identity, beliefs about one’s capabilities, beliefs about consequences, environmental context and resources, and social influences. See e.g. James Cane, Denise O’Connor and Susan Michie, Validation of the Theoretical Domains Framework for Use in Behaviour Change and Implementation Research’ (2012) 7(37) Implementation Science <https://implementationscience.biomedcentral.com/articles/10.1186/1748-5908-7-37>.
^[19] V Saini et al, ‘Drivers of Poor Medical Care’ (2017) The Lancet doi: 10.1016/S0140-6736(16)30947-3.
^[20] Reschovsky et al discuss the need to identify and target ‘malleable factors in clinical decision making’: above n 18, S559. Colla et al write that ‘understanding the drivers of overuse is ... needed to inform interventions targeting these services”’: Carrie H Colla et al, ‘Physician Perceptions of Choosing Wisely and Drivers of Overuse’ (2016) 22(5) American Journal of Managed Care 337.
^[21] Note that defensive medicine includes ‘assurance’ and ‘avoidance’ behaviours. Assurance behaviours, which are the focus of this paper, involve ordering tests, treatments and referrals to reduce the risk of complaints or lawsuits. Avoidance behaviour occurs when clinicians avoid particular practice areas or patients perceived as high risk. Jonathan Buron, ‘Defensive Medicine and Clinical Risk Management’ in Legal and Forensic Medicine, Roy G Beran, ed (Springer, 2013), pp 621-628. One US study asked a small sample of hospital physicians (n=36) to rate orders they made on one day on a scale from completely defensive to not at all defensive. Nearly 30% of orders (amounting to 13% of costs for the patient involved) were at least partly defensive. Completely defensive practices accounted for 3% of costs. Larger scale studies of this nature could help provide more nuanced understanding of how fears of legal liability interact with other drivers of unnecessary care. See Michael B Rothberg et al, ‘The Cost of Defensive Medicine on 3 Hospital Medicine Services’ (2014) 174(11) JAMA Internal Medicine 1867.
^[22] Rogers v Whitaker [1992] HCA 58, para 14. The practitioner who carries out treatment without adequately advising and informing the patient of material risks may face liability in negligence. A practitioner who interferes with a patient’s body without any consent at all may be liable in battery.
^[23] Chappel v Hart [1998] HCA 55, per Kirby J, para 93.
^[24] System level reforms are not the focus of this paper, however other analysts argue that the fear of lawsuits could be addressed by a no-fault compensation system: see e.g. Elshaug et al, above n 3 who discuss a suite of strategies to reduce overuse and suggest that ‘reducing the fear of litigation through so-called no fault systems provides important opportunities to enable clinical decision making to be about the patient and nothing else.’ The merits of a no-fault system for Australia have been canvassed elsewhere: see e.g., David Weisbrot and Kerry J Breen, ‘A No-Fault Compensation System For Medical Injury is Long Overdue’ (2012) 197(5) Medical Journal of Australia 296. Other law reforms can arguably make it more difficult for patients to sue doctors or limit the compensation they can receive, however some research questions the extent to which these reforms actually shift doctors’ behaviour away from medical overuse: Daniel A Waxman et al, ‘The Effect of Malpractice Reform on Emergency Department Care’ (2014) 371 New England Journal of Medicine 1518 (statutory reforms which limited malpractice claims to situations of ‘gross negligence’ had little impact on emergency physician behaviours, including use of imaging and admitting patients to hospital). For analysis of statutory caps on damages in the US, see X Xu, SJ Spurr, B Nan and AM Fendrick, ‘The Effect of Medical Malpractice Liability on Rate of Referrals Received by Specialist Physicians’ (2013) 8(4) Health Economics, Policy and Law 453 and R Smith-Bindman et al, ‘Diagnostic Imaging Rates for Head Injury in the ED and States’ Medical Malpractice Tort Reforms’ (2011) 29(6) American Journal of Emergency Medicine 656.
^[25] For a recent comprehensive analysis, see V Saini et al, above n 19.
^[26] Amnon Sonneberg and Charles R Boardman, ‘Costs of Fear’ (2013) 108 American Journal of Gastroenterology 173.
^[27] David Casarett, ‘The Science of Choosing Wisely – Overcoming the Therapeutic Illusion’ (2016) 374(13) New England Journal of Medicine 1203.
^[28] Financial incentives are acknowledged as an important influence on practitioner behaviour. A 2012 study identified over 150 services on the Medicare Benefits Schedule that are potentially ineffective or unsafe according to research evidence: Adam G Elshaug, Amber M Watt, Linda Mundy and Cameron D Willis, ‘Over 150 Potentially Low-value Health Care Practices: An Australian Study’ (2012) 197(1) Medical Journal of Australia 556. Concurrent to the Choosing Wisely Australia launch, the federal government announced a review of the Medicare Benefits Schedule, emphasising the need to ensure that services on the Schedule – which amount to over $20 billion dollars in spending – are supported by sound evidence. See Department of Health, Medicare Benefits Schedule Review: <http://www.health.gov.au/internet/main/publishing.nsf/Content/MBSReviewTaskforce> . The final report and recommendations are anticipated in December 2017.
^[29] Mike Moynihan and Bob Birrell, GP Oversupply – Ignoring the Evidence (Australian Population Research Institute, 2016) <http://tapri.org.au/wp-content/uploads/2016/04/GP-oversupply-ignoring-the-evidence-12-Dec-2016.pdf> .
^[30] Casarett, above n 27; Sonnenberg and Boardman, above n 26.
^[31] Buron, above n 21, 622.
^[32] Adrian O’Dowd, ‘Doctors Increasingly Practise “Defensive” Medicine for Fear of Litigation, Says Regulator’ (2015) 350 British Medical Journal h87.
^[33] O Ortashi et al, ‘The Practice of Defensive Medicine among Hospital Doctors in the United Kingdom’ (2013) 14 BMC Medical Ethics 42; BV Nahed et al, ‘Malpractice Liability and Defensive Medicine: A National Survey of Neurosurgeons’ (2012) 7(6) PLoS One e39237; DM Studdert et al, ‘Defensive Medicine among High-Risk Specialist Physicians in a Volatile Malpractice Environment’ (2005) 293(21) Journal of the American Medical Association 2609.
^[34] Choosing Wisely Australia, Choosing Wisely in Australia, 2016 Report, <http://www.choosingwisely.org.au/news-and-media/media-centre/choosing-wisely-australia-report> .
^[35] Louise M Nash et al, ‘Perceived Practice Change in Australian Doctors as a Result of Medicolegal Concerns’ (2010) 193(1) Medical Journal of Australia 579.
^[36] See survey data reviewed in Katherine Baicker, Bill J Wright & Nicole A Olson, ‘Reevaluating Reports of Defensive Medicine’ (2015) 40(6) Journal of Health Politics, Policy and Law 1157.
^[37] Ortashi et al, above n 33.
^[38] Toru Hiyama et al, ‘Defensive Medicine Practices among Gastroenterologists in Japan’ (2006) 12(47) World Journal of Gastroenterology 7671.
^[39] Alex Jingwei He, ‘The Doctor–Patient Relationship, Defensive Medicine and Overprescription in Chinese Public Hospitals: Evidence from a Cross-Sectional Survey in Shenzhen City’ (2015) 123 Social Science & Medicine 64.
^[40] E Asher et al, ‘Defensive Medicine in Israel - A Nationwide Survey’ (2012) 7(8) PLoS One e42613.
^[41] Michael Osti and Johannes Steyrer, ‘A National Survey of Defensive Medicine among Orthopaedic Surgeons, Trauma Surgeons and Radiologists in Austria: Evaluation of Prevalence and Context’ (2015) 21 Journal of Evaluation in Clinical Practice 278.
^[42] See e.g. Ann G Lawthers et al, ‘Physicians’ Perceptions of the Risk of Being Sued’ (1992) 17(3) Journal of Health Politics, Policy and Law 463 and JF Dick et al, ‘Predictors of Radiologists’ Perceived Risk of Malpractice Lawsuits in Breast Imaging (2009) 192(2) American Journal of Roentgenology 327. Both these studies found that doctors overestimated by threefold their risk of being sued. ER Carrier et al, ‘Physicians’ Fears of Malpractice Lawsuits are not Assuaged by Tort Reforms’ (2010) 29(9) Health Affairs 1585.
^[43] Seham Tawfick Girgis, Colin Thomson and Jeanette Ward, ‘“The Courts Expect the Impossible”: Medico-legal Issues as Perceived by New South Wales General Practitioners’ (2000) 7 Journal of Law and Medicine 273. Almost 90% of the respondents agreed that GPs recommend tests or treatments due to medico-legal fears.
^[44] Omar Salem and Christine Forster, ‘Defensive Medicine in General Practice: Recent Trends and the Impact of the Civil Liability Act 2002 (NSW)’ (2009) 17 Journal of Law and Medicine 235, 247. The authors summarise the statutory reforms made in response to a perceived litigation crisis.
^[45] See Rogers v Whitaker above n 22 and civil liability statutes: e.g., Civil Liability Act 2002 (NSW) s 5O; Civil Liability Act 2003 (Qld), s 22; Wrongs Act (Vic), s 59.
^[46] Civil Liability Act 2002 (NSW), s 5D(1); Wrongs Act 1958 (Vic) s 51(1)(b); Civil Liability Act 1936 (SA) s 34(1)(b); Civil Liability Act 2002 (WA) s 5D(1)(b); Civil Liability Act 2003 (Qld) s 11(1)(b); Civil Law (Wrongs) Act 2002 (ACT) s 45(1)(b): Civil Liability Act 2002 (Tas) s 13(1)(b).
^[47] Tabet v Gett [2010] HCA 12, para 114.
^[48] Civil Liability Act 2002 (NSW), s 5D(1)(b).
^[49] For example, in Paul v Cooke, [2013] NSWCA 311, the Court rejected the arguments that liability should flow because ‘[i]t was said that Dr Cooke was relatively blameworthy, and insured, and performed his duty for commercial profit, and that the consequences for Ms Paul were serious and life-changing. All that is true, but to my mind is misdirected.” (para 133)
^[50] Medical Board Of Western Australia and Richards [2010] WASAT 94, para 27.
^[51] Ibid, para 28.
^[52] Civil Liability Act 2002 (NSW), s 5B. See also Civil Liability Act 2003 (Qld), s 9, Wrongs Act 1958 (Vic), s 48.
^[53] Ibid.
^[54] Rothonis v Lattimore [2016] NSWSC 1409.
^[55] Ibid, para 60.
^[56] Coote v Kelly; Northam v Kelly [2016] NSWSC 1447. This was a retrial ordered following an appeal of an earlier trial decision: Coote v Kelly [2013] NSWCA 357.
^[57] Above n 50.
^[58] Ibid, para 55 (Professor Bernard Pearn­Rowe).
^[59] Ibid, para 56.
^[60] Ibid, para 54 (Dr Peter Maguire). This expert gave an example:

To take an extreme example as an illustration, tuberculosis (TB) is very rare in Australia in 2010. One of its symptoms is productive cough. Thousands of people are treated every day in Australia for productive cough, and in most cases the diagnosis of TB is not considered by the doctor because of its very low probability. There are a few cases of TB occurring each year in Australia, and there is often significant delay in diagnosis, since the attending doctors do not include TB as a probable diagnosis. This does not imply that every patient who presents with a cough should be tested for TB.
^[61] Le Brun v Joseph & Ors [2006] WADC 200, para 331, aff’d Le Brun v Joseph [No 2] [2010] WASCA 52.
^[62] Dobler v Kenneth Halverson and Ors; Dobler v Kurt Halverson (by his tutor) [2007] NSWCA 335, para 86.
^[63] Ibid, para 88.
^[64] Schiller v Connah [2002] NSWSC 1264, para 80.
^[65] Ibid, para 89, 92.
^[66] Healthcare providers could face liability if patients suffer harm due to undergoing a procedure that a provider knew to be unnecessary or where the provider fails to adequately inform the patient that there is not an urgent need for invasive or risky procedures. See Redzepovic v Western Health [2016] VSCA 251 as an example where such a claim failed. The plaintiff, who underwent surgical removal of his parotid gland, argued that the surgery was unnecessary and that he suffered serious lingering pain following the procedure that could have been avoided. The action was dismissed as medical evidence established that a “wait and see” approach was not a reasonable course of action in this case as there was a risk that the lump in the plaintiff’s neck could not be definitively diagnosed without removal, there was a risk it was a malignant tumour and, if left, could grow and become more difficult and risky to remove.
^[67] Above n 62.
^[68] Halverson v Dobler, [2006] NSWSC 1307, para 186.
^[69] [2012] NSWSC 840, appeal dismissed [2013] NSWCA 311; High Court dismissed the special leave application.
^[70] Tabet v Gett, above n 47. The question put to the Court was: “Does the common law of negligence in Australia recognise a less than even chance of avoiding an adverse health outcome as an interest of value to a patient, the loss of which by reason of a doctor’s negligence, can be compensated as damage suffered by that patient?”
^[71] Ibid, para 43, per Gummow ACJ.
^[72] Ibid, para 68, per Hayne and Bell JJ.
^[73] Ibid.
^[74] Marie M Bismark et al, ‘Identification of Doctors at Risk of Recurrent Complaints: A National Study of Healthcare Complaints in Australia’ (2013) 22(7) BMJ Quality and Safety 532.
^[75] See e.g., Wendy Reschovsky et al, ‘Physician-Patient Communication: The Relationship With Malpractice Claims Among Primary Care Physicians and Surgeons’ (1997) 277(7) Journal of the American Medical Association 553 (identifies specific communication behaviours associated with fewer malpractice claims against primary care practitioners); RA Barragry et al, ‘An Analytic Observational Study on Complaints Management in the General Practice Out of Hours Care Setting: Who Complains, Why, and What Can We Do About It?’ (2016) 17 BMC Family Practice 87 (poor communication identified as a factor in a majority of complaints against GPs in an Irish general practice study); A Ernesäter et al, ‘A Comparison of Calls Subjected to a Malpractice Claim Versus 'Normal Calls' Within The Swedish Healthcare Direct: A Case-Control Study’ (2014) 4(10) BMJ Open e005961 (use of open-ended questioning techniques elicited more medical details and reduced malpractice risks for tele-nurses in Sweden). The fact that communication and openness can reduce legal risks also informs open disclosure initiatives, whereby practitioners inform patients of incidents or mistakes that occurred in their care, particularly when the patient has experienced harm as a consequence. See e.g. Malcolm Parker, ‘A Fair Dinkum Duty of Open Disclosure Following Medical Error’ (2012) 20(1) Journal of Law and Medicine 34-43: ‘There is strong evidence that comprehensive communication, including genuine apology and consistent with the medical ethical principle of veracity, is associated with reduced levels of litigation.’ See also Angus Finlay, Cameron Stewart and Malcolm Parker, ‘Open Disclosure: Ethical, Professional and Legal Obligations, and the Way Forward for Regulation’ (2013) 198(8) Medical Journal of Australia 445 and Australian Open Disclosure Framework, <https://www.safetyandquality.gov.au/wp-content/uploads/2013/03/Australian-Open-Disclosure-Framework-Feb-2014.pdf>. Open disclosure is reactive, however, and involves open communication after a problem has been identified. Initiatives like Choosing Wisely are proactive and urge communication with patients as to whether particular interventions are warranted and to discuss the potential harms of overdiagnosis and overtreatment.
^[76] See comment on negligent diagnosis in Paul v Cooke, above n 49, para 95.
^[77] Buron, above n 21, 621.
^[78] David M Studdert et al, ‘Prevalence and Characteristics of Physicians Prone to Malpractice Claims’ (2016) 374(4) New England Journal of Medicine 354 and Matthew J Spittal, Marie M Bismark and David M Studdert, ‘The PRONE Score: An Algorithm for Predicting Doctors' Risks of Formal Patient Complaints Using Routinely Collected Administrative Data’ (2015) 24(6) BMJ Quality and Safety 360.
^[79] The communication and education process requires the practitioner to explain why some interventions are considered “do not do” by the weight of current evidence and to discuss other interventions that are among reasonable alternatives for the patient in light of their symptoms, history and other relevant considerations. It is worth noting here that some clinicians say they provide low value care in order to placate patient demands or expectations: Donna J Mason, ‘Choosing Wisely: Changing Clinicians, Patients, or Policies?’ (2015) 313(7) Journal of the American Medical Association 657. To the extent that patients demand tests, treatments or referrals, the Choosing Wisely recommendations give practitioners an external source of guidance to explain the evidentiary basis for their clinical judgment. Moreover, the law does not give patients the right to demand services that are not clinically indicated. Being person-centred does not mean delivering services of doubtful or no clinical benefit.
^[80] Paul Glasziou et al, ‘Too Much Medicine; Too Little Care’ (2013) 346 British Medical Journal f4247.
^[81] (1914) 211 NY 125, 129.
^[82] Wallace v Kam, [2013] HCA 19 para 8; see also Rosenberg v Percival [2001] HCA 18 and Hunter and New England Area Health Service [2009] NSWSC 761; (2009) 74 NSWLR 88 for endorsement of Cordozo J’s statement. For analysis of the Wallace decision, see e.g. Tracey Carver and Malcolm K Smith, ‘Medical Negligence, Causation and Liability for Non-Disclosure of Risk: A Post-Wallace Framework and Critique’ [2014] UNSWLawJl 35; (2014) 37(3) UNSW Law Journal 972.
^[83] Rogers v Whitaker, above n 22.
^[84] Ibid, para 16.
^[85] For elaboration, see Gummow J in Rosenberg v Percival, above n 82, paras 75-82.
^[86] Daniel E Hall, Allan V Prochazka and Aaron S Fink, ‘Informed Consent for Clinical Treatment’ (2012) 184(5) Canadian Medical Association Journal 533. See also Christine Grady, ‘Enduring and Emerging Challenges for Informed Consent’ (2015) 372 New England Journal of Medicine 855, who writes (at 856): ‘A substantial body of literature corroborates a considerable gap between the practice of informed consent and its theoretical construct or intended goals and indicates many unresolved conceptual and practical questions.’ In 1999, Braddock and colleagues published a now classic study reporting that only 9% of decisions in over 1,000 primary care and surgical consultations could be considered fully informed: CH Braddock et al, ‘Informed Decision Making in Outpatient Practice: Time to Get Back to Basics’ (1999) 282 Journal of the American Medical Association 2313. Clinicians were mostly likely to discuss the nature of the proposed intervention, such as a lab test or a medication, but often did not elicit patient questions or preferences. See also discussion in Eric B Bass, ‘Jump Forward to Get Back to Basics’ (2015) 30(11) Journal of General Internal Medicine 1577.
^[87] Erica S Spatz, Harlan M Krumholz and Benjamin W Moulton, ‘The New Era of Informed Consent: Getting to a Reasonable-Patient Standard Through Shared Decision Making’ (2016) 315(19) Journal of the American Medical Association 2063 who state (at 2064) that the mere existence of legal rules has ‘not been successful in achieving a high-value, patient-centred approach to informed decision making.’
^[88] Casarett, above n 27. Studies of consent conversations found that ‘uncertainty was communicated only 5% of the time when obtaining informed consent. This lack of communication was particularly true in discussions for decisions of high complexity; only 0.5% of such decisions were fully informed.’ See Wendy Z Tao, Lawrence H Brenner and B Sonny Bal, ‘The Law and Social Values: Medical Uncertainty’ (2017) 475 Clinical Orthopaedics and Related Research 27.
^[89] FJ Fowler, BS Gerstein and MJ Barry, ‘How Patient Centered are Medical Decisions?: Results of a National Survey’ (2013) 173(13) JAMA Internal Medicine 1215.
^[90] Ray Moynihan et al, ‘Public Opinions about Overdiagnosis: A National Community Survey’ (2015) 10(5) PLoS ONE.
^[91] Anne Sutkowski-Hemstreet et al, ‘Adult Patients’ Perspectives on the Benefits and Harms of Overused Screening Tests: A Qualitative Study’ (2015) 30:11 Journal of General Internal Medicine 1618. In interviews with 50 patients, over two-thirds could not state a harm of screening when asked to do so. Those that did mostly described harms related directly to preparing for or having a screening test, such as not eating prior to a colonoscopy. Few people identified harms related to the outcome of the screening and follow-up procedures.
^[92] Ibid, 9.
^[93] Moynihan et al, above n 90.
^[94] Loane Skene and Richard Smallwood, ‘Informed Consent: Lessons from Australia’ (2002) 324(7328) British Medical Journal 39. An update to this survey would be timely to determine whether knowledge and attitudes have changed. In a similar vein, a survey undertaken by Salem and Forster, above n 44, found very low knowledge among general practitioners of NSW Civil Liability Act reforms that aimed to reduce exposure to medical negligence claims.
^[95] Minna Johansson, Karsten Juhl, Linn Getz and Ray Moynihan, ‘ “Informed Choice” in a Time of Too Much Medicine – No Panacea for Ethical Difficulties” (2016) 353 British Medical Journal 2230, 2230.
^[96] Ibid, 2231.
^[97] Chappel v Hart [1998] HCA 55, para 96.
^[98] Wallace v Kam, above n 82. In regard to the duty to warn, the Court stated (at para 36) that ‘[t]he underlying policy is ... to protect the patient from the occurrence of physical injury the risk of which is unacceptable to the patient’. This implies that some risks are acceptable and it is up to the patient to weigh medical information with their own values and preferences and make a choice. If the purposes, risk and benefits of screening are communicated appropriately, members of the public are willing to accept that some cases of disease may be missed and that legal culpability should not automatically follow each case of missed disease: J Cockburn, S Redman, D Hill and E Henry, ‘Public Understanding of Medical Screening’ (1995) 2(4) Journal of Medical Screening 224.
^[99] Allison Lipitz-Snyderman et al, ‘Physician-Driven Variation in Nonrecommended Services Among Older Adults Diagnosed with Cancer’ (2016) 176 (10) JAMA Internal Medicine 1541.
^[100] Hall et al, above n 86.
^[101] Ibid.
^[102] Ibid, 1547.
^[103] Carole Doherty, Charitini Stavropoulou, Mark NK Saunders and Tracey Brown, ‘The Consent Process: Enabling or Disabling Patients’ Active Participation?’ (2017) 21(2) Health 205. See also M Habiba et al, ‘Women’s Accounts of Consenting to Surgery: Is Consent a Quality Problem?’ (2004) 13 Quality and Safety in Health Care 422.
^[104] For discussion see e.g. Grady, above n 86.
^[105] Colla et al, above n 20, 338.
^[106] Cane et al, above n 18.
^[107] In an analysis of cases following Rogers v Whitaker, Addison summarises:

A patient’s need for treatment necessarily involves consideration of the alternative measures available. The more alternatives available to a patient, the less the need for the patient to undergo a specific procedure or treatment. Patients are therefore more likely to attach significance to the risks of one treatment if an alternaive treatment is available that does not entail such risks.
Thomas Addison, ‘Negligent Failure to Inform: Developments in the Law since Rogers v Whitaker’ (2003) 11 Torts Law Journal 165, 177.
^[108] Analysis of the use of professionally developed guidelines in litigation is beyond the scope of this article but for discussion, see e.g. Jonathan Davies, ‘Clinical Guidelines as a Tool for Legal Liability: An International Perspective’ (2009) 28(4) Medicine and Law 603; Allen Kachalia and Michelle M Mello, ‘Breast Cancer Screening: Conflicting Guidelines and Medicolegal Risk’ (2013) 309(24) Journal of the American Medical Association 2555; and RA Fearnley, MDD Bell and AR Bodenham, ‘Status of National Guidelines in Dictating Individual Clinical Practice and Defining Negligence’ (2012) 108(4) British Journal of Anaesthesia 557.
^[109] Beth A Ripley, David Tiffany, Lisa S Lehmann and Stuart G Silverman, ‘Improving the Informed Consent Conversation: A Standardized Checklist that Is Patient Centred, Quality Driven, and Legally Sound’ (2015) 26(11) Journal of Vascular and Interventional Radiology 1639, 1642. The authors point out: ‘In fact, the elements that render a consent conversation patient-centred and quality-driven, such as respect for patient autonomy and clear communication, are the same elements that render a consent conversation legally sound.’ Gillett and Walker make a similar point, arguing that the therapeutic relationship ‘is undermined if the criteria of informed consent are taken as indicating a defensive restriction of the health care provider’s role, whereby her duty is to provide the relevant information, ensure that it is understood, and then leave the patient alone to make her or his decision.’ Grant Gillett and Simon Walker, ‘The Evolution of Informed Consent’ (2012) 19 Journal of Law and Medicine 673, 675.
^[110] For discussion, see Gillett and Walker, ibid. They criticise a formalistic depiction of consent as a ‘tick-box’ exercise:

Consent can function as a relatively shallow gloss on a forced choice ... Autonomy in such circumstances can be a sham and no substitute for free, responsive and rational cooperation with a clinician. Real empowerment actually enables a patient to be part of the development of a management plan that leads to an outcome he or she can accept. That way a person can properly take some responsibility for her or his own health care rather than merely being loaded with a great deal of complex information [and] little in the way of guidance in understanding it...’ (at 676).
^[111] Australian Medical Association, Code of Ethics 2004. Editorially Revised 2006. Revised 2016, para 1.5 <https://ama.com.au/position-statement/code-ethics-2004-editorially-revised-2006-revised-2016>.
^[112] Montgomery v Lanarkshire Health Board [2015] UKSC 11, para 81. The Court further comments on the way in which ‘law contributes to the incidence of litigation’ and posits:

an approach which results in patients being aware that the outcome of treatment is uncertain and potentially dangerous, and in their taking responsibility for the ultimate choice to undergo that treatment, may be less likely to encourage recriminations and litigation, in the event of an adverse outcome, than an approach which requires patients to rely on their doctors to determine whether a risk inherent in a particular form of treatment should be incurred (para 93).
For commentary on this decision, see e.g. A Coulter, A Hopkins and B Moulton, ‘Montgomery v Lanarkshire Health Board: Transforming Informed Consent’ (2017) 99(1) Royal College of Surgeons Bulletin 36.
^[113] Rogers v Whitaker, above n 22, para 14.
^[114] Hall et al, above n 86.
^[115] Gillett and Walker, above n 109, 675.
^[116] Mark Schlesinger and Rachel Grob, ‘Treating, Fast and Slow: Americans’ Understanding of and Responses to Low-Value Care’ (2017) 95(1) Milbank Quarterly 70, 82 (emphasis added).
^[117] Ibid.
^[118] France Légaré et al, ‘Interventions for Improving the Adoption of Shared Decision Making by Healthcare Professionals’ (2014) 15(9) Cochrane Database of Systematic Reviews CD006732. doi: 10.1002/14651858.CD006732.pub3. See also MJ Barry and S Edgman-Levitan, ‘Shared Decision-Making – Pinnacle of Patient-Centred Care’ (2012) 366 New England Journal of Medicine 780.
^[119] Ibid.
^[120] Rachel A Lindor et al, ‘Liability and Informed Consent in the Context of Shared Decision Making’ (2016) 23(12) Academic Emergency Medicine 1428. See also Marleen Kunneman and Victor M Montori, ‘When Patient-Centred Care is Worth Doing Well: Informed Consent or Shared Decision-Making’ (2016) BMJ Quality & Safety <http://qualitysafety.bmj.com/content/early/2016/09/26/bmjqs-2016-005969.long> who write that while SDM ‘requires a human connection of careful and kind care, informed consent procedures call for a more technical and mechanical approach, a formal one-way provision of information in which boxes of topics addressed are to be actually or metaphorically ticked for administrative and legal purposes.’
^[121] Doherty et al, above n 102, 207. See also Kunneman and Montori, above n 118, and DK Sokol, “Let’s Stop Consenting Patients” (2014) 348 British Medical Journal g2192.
^[122] Ibid.
^[123] MA Durand et al, ‘Do Interventions Designed to Support Shared Decision-Making Reduce Health Inequalities? A Systematic Review and Meta-Analysis’ (2014) 9(4) PLoS One e94670; Julia CM van Weert et al, ‘Decision Aids to Help Older People Make Health Decisions: A Systematic Review and Meta-Analysis’ (2016) 16 BMC Medical Informatics and Decision Making 45.
^[124] France Légaré and Philippe Thompson-Leduc, ‘Twelve Myths about Shared Decision Making’ (2014) 96 Patient Education and Counseling 281.
^[125] Glyn Elwyn, Dominick L Frosch and Sarah Kobrin, ‘Implementing Shared Decision-Making: Consider All the Consequences’ (2016) 11:114 Implementation Science DOI: 10.1186/s13012-016-0480-9.
^[126] McCartney et al argue that ‘[u]sable decision aids should now be seen as one of the most important end products for evidence based medicine’: Margaret McCartney et al, ‘Making Evidence Based Medicine Work for Individual Patients’ (2016) 353 British Medical Journal i2452.
^[127] Dawn Stacey et al, ‘Decision Aids for People Facing Health Treatment or Screening Decisions’ (2017) Cochrane Database of Systematic Reviews <http://onlinelibrary.wiley.com/doi/10.1002/14651858.CD001431.pub5/full>; Anna R Gagliardi et al, ‘Patient-Mediated Knowledge Translation (PKT) Interventions for Clinical Encounters: A Systematic Review’ (2016) 11(26) Implementation Science doi: 10.1186/s13012-016-0389-3. Note that a recent Canadian study concluded that most patient materials developed for Choosing Wisely Canada do not meet all the decision aid criteria established by the International Patient Decision Aid Standards: France Légaré et al, ‘Do Choosing Wisely Tools Meet Criteria for Patient Decision Aids? A Descriptive Analysis of Patient Materials’ (2016) 6(8) British Medical Journal Open e011918.
^[128] France Légaré et al, ‘Interventions for Improving the Adoption of Shared Decision Making by Healthcare Professionals’ (2014) 15(9) Cochrane Database of Systematic Reviews CD006732. This review could not determine the superiority of any particular intervention but concluded that strategies targeted at patients, practitioners or both are better than doing nothing to promote SDM.
^[129] See e.g., D Stacey et al, above n 127 (reporting: ‘The effect of decision aids [for SDM] on length of consultation varied from 8 minutes shorter to 23 minutes longer (median 2.55 minutes longer) with 2 studies indicating statistically-significantly longer, 1 study shorter, and 6 studies reporting no difference in consultation length.’)
^[130] Yael Schenker and Alan Meisel, ‘Informed Consent in Clinical Care – Practical Considerations in the Effort to Achieve Ethical Goals’ (2011) 305(11) Journal of the American Medical Association 1130, 1131.
^[131] E Grunfeld et al, ‘Improving Chronic Disease Prevention and Screening in Primary Care: Results of the BETTER Pragmatic Cluster Randomized Controlled Trial’ (2013) 14 BMC Family Practice 175 (patients had a one-hour consultation with a Prevention Practitioner, which was found to be cost-effective in improving prevention education and appropriate screening)
^[132] Lucio Naccarella, Louise N Greenstock and Peter M Brooks, ‘A Framework to Support Team-Based Models of Primary Care Within the Australian Health Care System’ (2012) 1(Suppl 3) Medical Journal of Australia Open 22; Nola M Ries, ‘Innovation in Healthcare, Innovation in Law: Does the Law Support Interprofessional Collaboration in Canadian Health Systems?’ (2016) 54 Osgoode Hall Law Journal 87.
^[133] Above n 112, para 76.
^[134] See e.g. AH Krist et al, “MyPreventive Care: Implementation and Dissemination of an Interactive Preventive Health Record in Three Practice-Based Research Networks Serving Disadvantaged Patients - A Randomized Cluster Trial” (2014) 9 Implementation Science 181; Schenker and Meisel, above n 128, cite the iMedConsent software used by the US Department of Veterans Affairs health system <https://www.ethics.va.gov/activities/espd.asp>.
^[135] See <https://myhealthrecord.gov.au/>. Around 4.6 million Australians have registered for a personally controlled electronic health record.
^[136] Mark Harris, ‘The Interface Between Primary Health Care and Population Health: Challenges and Opportunities for Prevention’ (2016) 26(1) Public Health Research & Practice e2611601.
^[137] Daniel E Hall et al, ‘The Impact of iMedConsent on Patient Decision-Making Regarding Cholecystectomy and Inguinal Herniorrhaphy’ (2012) 175(2) Journal of Surgical Research 227.
^[138] L Hanna et al, ‘Patient Perspectives on a Personally Controlled Electronic Health Record Used in Regional Australia: “I Can Be Like My Own Doctor”’(2016) Health Information Management Journal pii: 1833358316661063.
^[139] Mona Krouss, Lindsay Croft and Daniel J Morgan, ‘Physician Understanding and Ability to Communicate Harms and Benefits of Common Medical Treatments’ (2016) 176(10) JAMA Internal Medicine 1565; O Wegwarth et al, ‘Do Physicians Understand Cancer Screening Statistics? A National Survey of Primary Care Physicians in the United States’ (2012) 156(5) Annals of Internal Medicine 340.
^[140] Brian J Zikmund-Fisher et al, ‘Perceived Barriers to Implementing Individual Choosing Wisely Recommendations in Two National Surveys of Primary Care Providers’ (2016) 32(2) Journal of General Internal Medicine 211. ER Carrier et al, ‘High Physician Concern about Malpractice Risk Predicts More Aggressive Diagnostic Testing in Office-Based Practice’ (2013) 32(8) Health Affairs 1383.
^[141] Zikmund-Fisher et al, ibid. The authors express concern (at 215) that practitioners might anticipate ‘patient barriers to acceptance of recommendations to reduce service utilization that either do not exist or could be easily overcome.’
^[142] Ray Moynihan et al, ‘What Do You Think Overdiagnosis Means? A Qualitative Analysis of Responses From a National Community Survey of Australians’ (2015) 5(5) BMJ Open e007436 doi:10.1136/bmjopen-2014-007436, at 6.
^[143] William Silverstein et al, ‘A Survey of Primary Care Patients’ Readiness to Engage in the De-Adoption Practices Recommended by Choosing Wisely Canada’ (2016) 9 BMC Research Notes 301.
^[144] Karen L Posner, Julie Severson and Karen B Domino, ‘The Role of Informed Consent in Patient Complaints: Reducing Hidden Health System Costs and Improving Patient Engagement Through Shared Decision Making” (2015) 35(2) Journal of Healthcare Risk Management 38.
^[145] Elwyn and colleagues have recently proposed a research agenda to examine the effects of SDM, above note 123. Durand et al conclude that there is currently insufficient evidence to determine whether SDM reduces medical malpractice claims, but some studies indicate that clinicians face greater liability risk when they fail to elicit or ignore patient preferences: M Durand et al, “Can Shared Decision-Making Reduce Medical Malpractice Litigation? A Systematic Review” (2015) 15 BMC Health Services Research 167. American commentators suggest that a shift to SDM ‘will bring contract principles to the fore of patient-physician interactions’ and legal disputes, when they arise, may be framed more often in contract than tort law: Edward P Monico, Arthur Calise and Joseph Calabro, ‘Torts to Contract? Moving from Informed Consent to Shared Decision-making’ (2008) 28(4) Journal of Healthcare Risk Management 7.
^[146] Elshaug et al, above n 3, 1.
^[147] Ibid, 3.