Informed Consent and Performance Data: Clinician Experience as a Material Risk

In Australia, as in other common law jurisdictions, the doctrine of informed consent has developed from the principle that individuals have a right to decide for themselves whether or not to undergo medical treatments. 1 The personal autonomy of the patient is facilitated by the provision of information by their medical practitioner. While a description in broad terms of the procedure to be performed is sufficient to establish valid consent – and to avoid the tort of trespass to the person – more information may be required to satisfy the doctor’s duty to warn of a material risk, and to negate a claim of negligence. The scope and content of the duty to warn has a degree of flexibility, in that practitioners are expected to be responsive to the needs of individual patients and that this duty is subject to therapeutic privilege. The focus of most informed consent discussions understandably centres on the risks of the procedure to be undertaken, and possible alternative treatment options. In recent years, however, debate has arisen both internationally and in Australia over whether the duty to warn might also encompass disclosure of risks relating to the doctor undertaking the procedure, including information about their skill or experience. This debate