Doctors’ duty of care does not extend to an ‘exercise in futility’

When patients decline medically-recommended treatment, the duty of doctors extends beyond recommending the treatment and advising the risks of not proceeding. It is important to discuss all reasonably available treatments, explain clearly why they are needed, and provide appropriate referrals. However, the duty does not extend to an exercise in futility when patients persistently refuse treatment.

Standard of care – non-compliant patient

Mr A was morbidly obese and had a range of medical conditions, including poorly controlled diabetes mellitus, sleep apnoea and liver disease when he consulted Dr V.

Mr A’s condition progressed to liver cancer. He claimed Dr V was negligent for not taking more active steps to assist Mr A to lose weight. Specifically, not referring him to a bariatric surgeon or to an obesity clinic.

The evidence showed Mr A had consulted many health practitioners and been advised repeatedly to lose weight.

Dr V had specifically referred Mr A to a respiratory specialist, who advised Mr A that weight loss was the best treatment for his respiratory issues and provided a referral to an obesity clinic. The court accepted Dr V had discussed this report and referral with Mr A, who said that previous weight loss had not made him feel any better and he did not intend to take up the referral.

The initial trial judge considered that a reasonable medical practitioner had a duty to do ‘more than merely point out the risks and counsel weight loss’. However the Court of Appeal concluded this did not extend to a duty to re-refer Mr A to the obesity clinic, when he already had a referral and indicated he did not intend to act on it.

The appeal judgement said: ‘A general practitioner may be obliged, in taking reasonable care for the health of a patient, to advise in unequivocal terms that weight loss is necessary to protect his or her health, to discuss the means by which that may be achieved and to offer (and encourage acceptance of) referrals to appropriate specialists or clinics. … [However] If the plaintiff refused to take the firm advice of his general practitioner, and of experts to whom he had been referred, there was no breach of duty on the part of a general practitioner in failing to write a further referral. The duty of care stopped short of requiring an exercise in futility.’

Standard of care

Dr V also argued that at the time, bariatric surgery was not regarded an effective treatment for progressive liver disease associated with morbid obesity.

On appeal the trial judge considered bariatric surgery was a recognised treatment and that Dr V should have made a separate referral to a bariatric surgeon for assessment.

However the Court of Appeal concluded the evidence did not show a reasonable general practitioner would have referred Mr A directly to a bariatric surgeon. Bariatric surgery was still an uncommon treatment at the time. It was considered high risk, particularly for patients like Mr A with diabetes and metabolic syndrome. While Mr A may have been referred for bariatric surgery, this would generally only be after unsuccessful conservative treatment at an obesity clinic. That is, the next step for a reasonable GP would be referral to an obesity clinic, a referral that Mr A declined.

Medical Records

Dr V’s notes of treatment discussions with Mr A were relatively brief: ‘patient declining this regime’. The court did eventually accept Dr V’s evidence of his discussions and advice on weight loss, but there was some debate about what had occurred.

At the initial trial, Dr V was found negligent and liable for damages of $364,372 (after a deduction of 20% for Mr A’s contributory negligence).

That finding was overturned on appeal and Dr V was found not to be negligent.

Patients have a right to make decisions about their own treatment, and that includes refusing treatment.

Your duty of care extends beyond recommending treatment and advising of risks  

The expectation is to explain clearly why the treatment is recommended and the potential consequences of declining, and to provide appropriate referrals.

If a patient declines your advice or treatment, you are not expected to engage in an exercise in futility.

If your care is ever questioned, it will be judged against what was widely accepted by your peers as competent professional practice at the time of the treatment.

If a patient declines recommended treatment, be careful to document the advice you gave and the contents of your discussion. Note the information you provided, the risks and concerns you discussed and your explanation of the implications of the patient’s choice.

Avant factsheet - When patients do not follow your advice

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