Disclosure of Material Risk as Systems-Error Tragedy: Wallace v Kam (2013)
Faunce TA 'Disclosure of Material Risk as Systems Error Tragedy: Wallace v Kam (2013) 87 ALJR 648  HCA 19'. Journal of Law and Medicine 2013; 21(1) 53-65.
13 Pages Posted: 27 Sep 2013
Date Written: September 27, 2013
The law requiring a patient to be informed not just of the nature of a medical procedure but also its likely but subjectively significant risks, which blazed across the southerly firmament of patients’ rights in 1992 with the decision of Rogers v Whitaker (1992) 175 CLR 479, appears to have now passed to the outer darkness of judicial deference. The decision of the Australian High Court in Wallace v Kam (2013) 87 ALJR 648;  HCA 19 continues the judicial trend to go cool on patients’ rights and restrict the capacity of medically injured people to claim redress which was evident in Rosenberg v Percival (2001) 205 CLR 434 and various Australian State civil claims statutes. This trend only heightens the analogy between the law of informed consent and classical literary tragedy. Indeed, heightening the analogy between the legislation and case law on disclosure of material risk and classical literary tragedy may provide necessary insights to bring greater justice to patients injured as a result of medical misadventure and incompetence. Fault in these cases lies most often with what may be termed an overarching system (Lear’s “wheel of fire,” or Hamlet’s rank and rotten state) and not the individual professionals working within it. In medicine it is the overarching system that is characterised increasingly by private insurance companies subsidised by the taxpayers whose capacity to claim they restrict, by rights-restricting legislation passed as a result of successful lobbying by private interest groups, by multinational companies shaping the regulatory architecture on access to medicine and medical services.
Keywords: Informed consent, medical negligence, systems error, literary tragedy
JEL Classification: D81, I18, K32
Suggested Citation: Suggested Citation