Choosing Wisely: Law's Contribution as a Cause of and a Cure for Unwise Healthcare Choices

Abstract

The provision of unnecessary healthcare is a serious problem in Australia and involves two key legal issues. First, doctors’ fear of litigation drives defensive practices – ordering tests and procedures, making referrals, and prescribing drugs to reduce perceived legal risks, rather than to advance patient care. Second, suboptimal communication and decision making processes undermine a patient’s right to make informed healthcare choices. This article critically analyses these problems and proposes solutions. An extensive body of medico-legal literature is synthesised to highlight gaps between legal requirements and what happens in practice. Negligence case law is discussed to clarify legal principles and show that courts discourage defensive practice. Finally, the article presents practical strategies to enhance communication and shared decision making in the clinical encounter.

Keywords: Health Law; Defensive Medicine; Negligence; Standard of Care; Informed Consent