Declining to perform a procedure … and justifying your clinical decisions

Claire Bassingthwaighte, B.Com, LLB, Legal Team Manager, Professional Conduct, Avant Law

Sunday, 27 November 2022

Doctor performing patient examination

Some patients avoid procedures when they are needed, while others request procedures that are not clinically indicated. Either scenario can lead to a patient feeling they have not been treated properly and result in them making a complaint.

An ENT member sought our assistance when a complaint was made against him by a patient who was unhappy the surgeon had refused to perform a tonsillectomy, even though the doctor had observed the appropriate clinical protocols.

This situation reinforces the importance of taking the extra time to properly document any discussions with the patient, the clinical decision-making process and treatment plans when completing your medical notes.

Patient requests tonsillectomy

The patient was referred to the ENT doctor with a history of tonsillitis. The patient had experienced three bouts of tonsillitis in the previous nine months with each case reportedly taking longer to resolve and requiring antibiotics. The patient requested the doctor perform a tonsillectomy.

On examination, the doctor noted the patient’s tonsils were moderately large but not infected. He explained the tonsillectomy procedure to the patient as well as the risks and complications. The doctor also informed the patient that the Queensland Health referral guidelines for when a tonsillectomy is clinically indicated, are well established. If a patient suffers six episodes of tonsillitis per year; or four episodes per year for two years; or two episodes per year for the previous three years, then performing a tonsillectomy is indicated. As he had only suffered three episodes in nine months, a tonsillectomy was not clinically indicated at that time. The doctor developed an appropriate treatment plan to manage the patient conservatively. He advised the patient that if he continued to develop tonsillitis to the extent he would meet the criteria for a tonsillectomy, he could return for review and consideration could be given to whether the procedure had become clinically indicated. Unsatisfied with the lack of treatment offered, the patient made a complaint to the state’s complaints body, who referred the matter to Ahpra.

Records key evidence

Fortunately, the doctor had made very detailed notes which included the clinical basis for his treatment plan and decision to adopt a wait-and-see approach, in line with accepted clinical guidelines. The doctor also recorded the discussion with the patient as to why the procedure was not clinically indicated.

Our medico-legal team helped the doctor prepare a response to Ahpra outlining these facts and no further action was taken.

Key lessons

It can be challenging dealing with a situation where a patient wants or expects a procedure you do not believe is in the patient’s best interests.

A doctor is not obliged to treat a patient unless it is an emergency and only until the doctor can transfer care to another suitably qualified medical practitioner. Doctors are also under no obligation to offer or perform a procedure they believe is not clinically indicated or not in the patient’s best interests or is futile.

Doctors’ professional obligations include only providing services that are necessary and likely to benefit the patient. Doctors may be criticised for performing a procedure they did not consider was clinically indicated. It will not be enough to say “the patient wanted me to do it” to justify performing such a procedure.

If you are asked to explain the clinical reasoning behind your decision and to demonstrate you complied with clinical guidelines, your medical notes will be a key factor in your defence.

Detailed medical records are essential for the efficient and safe care of patients and important evidence of the care you provided to a patient, if a claim or complaint is made. Ensure you:

  • Clearly convey to the patient why a procedure or treatment is not clinically indicated and any eligibility criteria, so they know when to return for review if appropriate.
  • Document your clinical decisions and the reasons why in the patient’s medical records.
  • Document your discussions with the patient and any referring or treating doctors.
  • Consider suggesting the patient obtain a second opinion from another specialist if they seem dissatisfied with your proposed treatment plan.

If it’s an elective matter and you have significant concerns about the patient’s expectations or compliance with treatment, you can refer the patient to another doctor if you feel this is in the patient’s best interest or your best interest.

More information

For medico-legal advice, please contact us on or call 1800 128 268, 24/7 in emergencies.


Article: Court finds following clinical guidelines 'not irrational'

RACGP Article: The role of clinical guidelines in establishing competent professional practice

Factsheet: Medical records - the essentials

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This publication is not comprehensive and does not constitute legal or medical advice. You should seek legal or other professional advice before relying on any content, and practise proper clinical decision making with regard to the individual circumstances. Persons implementing any recommendations contained in this publication must exercise their own independent skill or judgement or seek appropriate professional advice relevant to their own particular practice. Compliance with any recommendations will not in any way guarantee discharge of the duty of care owed to patients and others coming into contact with the health professional or practice. Avant is not responsible to you or anyone else for any loss suffered in connection with the use of this information. Information is only current at the date initially published.

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