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

(2017) 25 Journal of Law and Medicine 210-228

23 Pages Posted: 26 Jun 2017 Last revised: 10 Nov 2017

Nola M Ries

University of Technology Sydney (UTS)

Date Written: May 1, 2017

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

Suggested Citation

Ries, Nola M, Choosing Wisely: Law's Contribution as a Cause of and a Cure for Unwise Healthcare Choices (May 1, 2017). (2017) 25 Journal of Law and Medicine 210-228. Available at SSRN: https://ssrn.com/abstract=2992449 or http://dx.doi.org/10.2139/ssrn.2992449

Nola M Ries (Contact Author)

University of Technology Sydney (UTS) ( email )

15 Broadway, Ultimo
PO Box 123
Sydney, NSW 2007
Australia

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