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Case Note
Bernadette Richards[*]
The law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment. That duty is a single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgment.[1]
The Rogers v Whitaker standard of care is well established and widely referred to as the starting point when determining whether or not a doctor has acted with due care and within the bounds of the accepted standard. The application of this straightforward test in the recent decision of PD v Dr Nicholas Harvey[2] resulted in a decision which, at first glance, is difficult to reconcile with the basic tenet that: 'one man is under no duty of controlling another’s actions to prevent his doing damage to a third.'[3]
The decision provides a reasoned and careful consideration of a complex fact situation. In his judgment, Cripps AJ concluded that two doctors at a Sydney Clinic were liable for the development of a HIV positive status in PD who was the partner (and later wife) of another patient. Whilst it appears to create an onerous duty requiring doctors to protect the sexual partners of their HIV positive patients, a close consideration of the decision reveals that the duty established in this case is limited to the particular fact situation and arises from a failure on behalf of the doctors to meet the standard of care required in three distinct duty situations.
The significance of this case therefore lies not in the imposition of a duty to protect individuals from the actions of third parties but in the sounding of the cautionary note that professionals, in their dealings with patients and clients, must not become complacent. The established and recognised standards of care will be rigorously applied in even the most complex and novel situations.
The plaintiff in this case (PD) attended the Alpha Medical Clinic in November 1997. This was a joint consultation with her future husband (FH) conducted by Dr Harvey. It is important to note that during this consultation, PD specifically expressed concern regarding FH’s HIV status and requested that they both be tested. At the time of the initial consultation there was no mention of confidentiality issues and at all times PD believed that she would have access to FH’s test results. There was no note on either patient’s records that there had been a joint consultation.
PD returned one week later and sought both sets of results.[5] The receptionist informed her that she could only have access to her own results, which were clear. The receptionist then gave the results to her. There was no further contact with her doctor with respect to the tests. The provision of results by the receptionist as opposed to a doctor, was accepted by all parties as falling below the standard expected.[6] It was admitted that she should have seen a doctor at this time, providing an opportunity for clarification and explanation.[7]
FH attended the clinic at a different time and there are claims that he was spoken to by Dr Harvey (although there is no record of this conversation). When FH was given his test results (which were positive) he was told that an appointment had been made for him to attend the Royal Prince Alfred Immunisation Clinic (RPAIC). He did not attend this appointment. There is evidence that FH was also spoken to by a second doctor at the clinic (Dr Chen)[8] when he gave FH the letter of referral.[9] At no time was any further counselling provided by the doctors at the clinic who assumed that they had fulfilled their duty when they made the appointment and referred FH to the RPAIC. Dr Chen assumed that FH understood the gravity of the situation. This assumption was based purely on the fact that FH was 'well dressed, educated and African.'[10]
PD had asked FH for his results but he had provided her with false documents showing him to be HIV negative. The defendants submitted that in the event of duty and breach being found, the falsehood acted to break the chain of causation.[11] This submission was rejected on the grounds that whilst the specific falsehood may not have been foreseeable, irrational or deceitful behaviour was clearly foreseeable.[12]
FH's failure to keep his appointment at RPAIC was neither noted nor investigated until after May 1999 when the clinic was alerted to FH’s non-attendance. PD continued attending the clinic as a patient during this time and was admitted to hospital in September 1999 with what was later acknowledged to be symptomatic of the development of a HIV positive status. She did not become aware of her status until just prior to giving birth in January 2000.
In the interim PD discovered the truth regarding FH and visited the clinic seeking some answers. This visit occurred in September 1999 and there was a disputed discussion with Dr Chen.[13] Cripps AJ accepted that at this time PD was not aware of her HIV positive status and that she was seeking answers as to why she was not informed of FH’s condition. Dr Chen asserted that PD had told him that she was HIV positive, however this was not noted on her card, and Cripps AJ accepted PD’s assertion that she was unaware.[14] It was also accepted that Dr Chen simply stated that it was not his concern and that he was too busy to deal with her at that time.[15]
PD’s legal claim was on the basis of the loss suffered (the development of her HIV positive status) which she claimed was a direct result of the failure of the doctors at the Alpha Clinic to inform her of FH’s test results.
In presenting his judgment, Cripps AJ clearly identified three separate strands of duty owed by the two doctors to different parties. The three duties operated so as to interrelate and result in liability to PD. The duties owed by Dr Harvey and Dr Chen were:
| i. | duty to FH, |
| ii. | duty to PD, and |
| iii. | public duty. |
It was found that the defendants, in failing to meet the standard of care required in each of these duties, were liable for the significant loss suffered by PD.
At no time was FH offered any comprehensive counselling. He was informed of his results, there was some reference made to the severity of the condition, and he was referred on to RPAIC. The standard of counselling was acknowledged to fall far short of that expected of a GP.[16] Reference was made to the Rogers v Whitaker[17] standard of providing information and counselling with reasonable care and skill. There was deemed to be a want of due care in these circumstances as there was no comprehensive attempt to ensure an understanding of the severity of the situation or to follow up the patient once he had been referred on. [18]
Cripps AJ accepted evidence that grave news such as this can lead to anger, denial and blame which in turn can lead to inappropriate or unusual behaviour (such as falsifying results or failing to inform a partner of his condition).[19] There was also acceptance of evidence from specialists in the field of sexually transmitted conditions, that where adequate and careful counselling is provided, patients are likely to tell their partners of their condition.[20]
Whilst the standard of care was clearly not met with the initial counselling there was a possible opportunity for redemption in May 1999 when a questionnaire from the Department of Health regarding the progress of a HIV positive patient was received and then in June of the same year when the clinic was informed that FH had not attended his appointment at RPAIC.[21] Neither occurrence served to prompt any action and at no time was FH contacted.[22] Cripps AJ made it clear that the counselling and follow up treatment of FH was wanting.[23]
The treatment of PD was seen to be flawed right from the start. The initial joint consultation was found to fall short of the standard required. At no time during that consultation was the issue of confidentiality raised, nor was the possibility of discordant results addressed.[24] PD was left with the reasonable belief that she would have access to FH’s results. Further to this, the patient cards were not cross-referenced regarding the joint consultation so there was nothing to prompt acknowledgment of the joint status of the patients and therefore subsequent recognition of the risk that PD was exposed to. Emphasis was placed on the importance of the initial joint consultation, followed by individual and separate treatment with no recognition of the original joint approach.[25]
It is important to note that Cripps AJ specifically stopped short of imposing a duty so high as to ensure that PD was not infected.[26] The identified scope of the duty owed was to take ‘all reasonable steps to protect the plaintiff from what was a foreseeable danger to her’.[27]
Clear and specific steps were identified which could have provided such protection [28] and which would have potentially avoided the loss suffered by PD.
The third strand of duty identified was the general public duty which lies in the nature of HIV as a Category 3 medical condition identified and regulated under the Public Health Act 1991 (NSW) and the Public Health Regulation 1991 (NSW).[29] The confidentiality of patients suffering from HIV is enshrined in the legislation and protection of these patients ensured. However, there are certain circumstances under which the Director-General Health may be informed and where steps may be taken to protect public health. Of importance in these circumstances is the provision that the Director-General may notify a person who has been in contact with another and is therefore at risk of contracting the category 3 condition.[30]
The public duty to minimise the spread of HIV was recognised and emphasised.[31] The fact that there was a duty to maintain confidentiality was not deemed to conflict unduly with this duty. Cripps AJ specifically rejected a submission that there was an 'overriding and inconsistent duty'[32] on the grounds that the confidentiality requirement only prohibited the provision of information directly to PD. There were other avenues prescribed by statute that would have simultaneously preserved confidentiality and protected PD.[33]
The decision in this case is limited to the somewhat complicated fact scenario before the court. There was evidence that the failure to provide adequate counselling to PD and FH firstly as joint patients and then as individuals reduced the likelihood of FH being honest with PD and acting in a generally responsible manner. The general public duty to protect parties from infection meant that in failing to provide any follow up treatment (or indeed to endeavour to rectify this problem when they were made aware of the fact that FH had failed to attend the RPAIC) meant that the defendants had breached three interrelated duties, resulting in the loss suffered by PD.
It is important to note that Cripps AJ emphasised that a failure to do what the law prohibits (i.e., inform PD of FH’s results) cannot form the basis of a successful action.[34] Rather, the basis of the decision can be found in the complex interrelationship of duties. There was no positive duty to inform PD, however it was accepted that if the process of counselling of FH had been commenced in a timely manner, then ‘more probably than not’ PD would have become aware of FH’s condition prior to becoming infected.[35]
Further to this breach is the inactivity on the part of both doctors once it was discovered that FH had failed to keep his appointment. Three clear options were identified as being available to the defendants. They may have:
| i. | sought advice from experts in the field, |
| ii. | sought advice from the Medical Defence Union, or |
| iii. | spoken to the Department of Health.[36] |
It was accepted that if any of these options had been taken, the infection of PD could have been avoided.
At first glance this case appears to be one of the imposition of a positive duty to protect an individual from the actions of a third party. In reality however, it involves the consideration of a complex fact situation involving three distinct strands of duty that interrelate. The key to the decision is that the defendants clearly failed to meet any of these duties and these three breaches combined to create a loss to PD.
The basis of the decision here is not found on the failure to protect an individual from the actions of a third party. The real failure lay in the standard of the treatment provided to both PD and FH, combined with a disregard of clear public duty to minimise the risk of the spread of highly infectious diseases.
The key to the decision is that the first approach to the clinic saw PD and FH treated as joint patients. This was later overlooked and they were subsequently treated as individuals where their relationship became irrelevant. At the initial consultation PD made it quite clear that the consultation and testing was a joint treatment and her subsequent actions demonstrated an assumption that she would have access to FH’s results. Of importance was the acceptance by Cripps AJ of PD’s assertion that if either the true status was known or it was evident that FH was not prepared to make his results available, PD would not have proceeded with the relationship as she did.[37]
It is important to emphasise that the complicated fact scenario belies the fact that the solution was simple, and injury (if the duty was breached) was clearly foreseeable. The judgment presents clear alternatives that could have been taken with little effort and would have protected PD from significant loss. In this respect, the case can clearly be seen as a straightforward negligence situation where the doctors failed in their primary duties to their patients.
An important aspect of the judgment is the complex interrelationship of the three strands of duty and the fact that the doctors failed on every level to meet the requisite standard of care. The implications of the decision are straightforward – if a doctor,[38] initially consults with a couple, then the parameters for all future correspondence and interaction must be established. All records must be clearly cross-referenced and any subsequent individual treatment or meeting must be dealt with in the context of the relationship and initial joint approach. The cautionary note sounded by this case is a simple one: take care and be aware of possible conflicting duties.
[*] B.A., Dip Ed, LLB (Hons), Lecturer in Law, University of Adelaide
[1] Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 at 483 per Mason CJ, Brennan, Dawson, Toohey and McHugh JJ.
[2] PD v Dr Nicholas Harvey and 1 Ors [2003] NSWSC 487.
[3] Smith v Leurs [1945] HCA 27; (1945) 70 CLR 256 at 262 per Dixon J.
[4] This summary of the facts is taken from the lengthy consideration of the series of events over a two year period set out in detail by Cripps AJ, PD v Dr Nicholas Harvey and 1 Ors [2003] NSWSC 487, at [1]- [36].
[5] Cripps AJ, at [13], accepted this as an affirmation of her understanding that she would have ready access to FH’s results.
[6] Ibid, [14].
[7] Ibid.
[8] Dr Chen was joint defendant in the case.
[9] Cripps AJ accepted that this was the case, at [22].
[10] Ibid.
[11] Ibid, [51].
[12] Ibid, [80].
[13] Details of the discussion are outlined at [30]-[36].
[14] Ibid, [33].
[15] Ibid, [34].
[16] Ibid, [23] and [69].
[17] [1992] HCA 58; (1992) 175 CLR 479 at 483, referred to in PD v Dr Nicholas Harvey, Ibid at [72].
[18] PD v Dr Nicholas Harvey and 1 Ors [2003] NSWSC 487, [70].
[19] Cripps AJ highlighted the fact that in situations such as these 'responsible behaviour cannot be assumed' [69].
[20] Ibid, [65].
[21] Ibid, [26].
[22] Ibid, [26]-[27].
[23] Ibid, [71].
[24] Ibid, [47] – [50] and [56].
[25] Ibid, [74] and [78].
[26] Ibid, [75].
[27] Ibid.
[28] These steps will be considered in more detail below, as they require an understanding of the interlinking of the three different duties.
[29] PD v Dr Nicholas Harvey and 1 Ors [2003] NSWSC 487, [37] – [44]. Relevant sections are as follows: Public Health Act 1991 (NSW) s17 and Public Health Regulation 1991 (NSW) s10.
[30] Public Health Regulation 1991 (NSW), s10.
[31] PD v Dr Nicholas Harvey and 1 Ors [2003] NSWSC 487, [70].
[32] Ibid, [73] quoting Hill v Van Erp (1996) 188 CLR 159 per Gaudron J.
[33] Ibid, [37]-[44] sets out the relevant statutory provisions.
[34] Ibid, [59].
[35] Ibid, [71].
[36] Ibid, [76].
[37] Ibid, [49]-[50].
[38] Or indeed any professional dealing with potentially confidential or sensitive information.
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