1. Judicial comment on defensive medicine Bill Madden

2. Structure Judicial comments (mostly appellate) 1978 – Royal Commission (Pearson report) 1985 – Sidaway v Bethlem Hospital 1998 – Chappel v Hart 2000 – ‘Defensive lawyering’ (Arthur J S Hall) Legal framework Discussion points

3. Reference 1: Surgical procedure Chappel v Hart [1998] HCA 55 Kirby J fn 113 - when legal principle requires it, take care not to create a false standard of liability…which may have undesirable professional and social consequences. Article by Mendelson (transcript of argument), reference to MDU survey of doctors. Focus of decision was causation.

4. Reference 2: Sexual abuse reporting Sullivan v Moody [2001] HCA 59 Transcript reference back to SASCFC CLT v Connon The fear of suit may lead to unnecessary tests and other procedures at great cost in terms of delay and expense and the risk of the child. Focus of decision was duty (coherence).

5. Reference 3 & 4: Cancer diagnosis Schiller v Conah [2002] NSWSC 1264; Mouratidis v Brown [2002] FCAFC 33 ‘Classic; argument: To conduct a `blind stab' would be a departure from standard procedure. To hold otherwise would be to encourage the practise of `defensive medicine' and lead to a higher false negative ratio, thus rendering the current system even less reliable. Focus of decisions was on breach. Note: 2002 tort reforms, Salem & Forster article 2009 – Survey results suggest no change in defensive medicine.

6. Reference 5: Psychiatric patient discharge Hunter Area Health Service & v Presland [2005] NSWCA 33 Spigelman CJ: Evidence of defensive practices exists but court should be slow to conclude a medical practitioner distort correct practices; in any event query incremental effect given existing law. Santow JA: civil liability (for) decisions to restrain, is likely to induce a detrimentally defensive frame of mind, undermining coherence of the statutory scheme. Focus on this issue was on duty (coherence).

7. Reference 6: Wrongful life Harriton v Stephens [2006] HCA 15 Callinan J, narrow comment: ‘Defensive medicine, practised as a result of a decision favourable to the appellant, could lead to a greater readiness on the part of practitioners to counsel abortion’. Focus was on damage.

8. Reference 7: Loss of chance (1) Tabet v Gett [2010] HCA 12 Passages in transcript of argument – question by Crennan J ‘… a shift of focus away from outcome and on to loss of a chance in terms of actionable damage, that would inevitably encourage defensive medicine…’ Long reply by B Walker SC. Lack of empirical evidence Inappropriate assumption as to medical practice

9. Reference 7: Loss of chance (2) Tabet v Gett [2010] HCA 12 Crennan J at [102]: ‘…Policy considerations which tell against altering the present requirement of proof of causation in cases of medical negligence include the prospect of thereby encouraging defensive medicine, the impact of that on the Medicare system and private medical insurance schemes and the impact of any change to the basis of liability on professional liability insurance of medical practitioners…’

10. Reference 8: Psychiatric patient ACT v Crowley [2012] ACTCA 52 The claimant was mentally ill and was wielding a kendo stick as weapon in public, when shot by a police officer. Presland revisited, summary of remarks of Spigelman CJ, Nothing more said on the topic of defensive medicine.

11. Definition by Studdert 2010 ‘Tort scholars conceive of defensive medicine as “overdeterrence,” meaning that signals from tort law lead physicians to take more precautions than are socially optimal (considering both the injury-reducing potential of the precautions and their cost’.

12. Legal framework If defensive medicine relevant, in what context? Duty Breach Causation Damage. Breach: the social utility of the activity that creates the risk of harm (if it goes beyond ‘a reasonable person in the person’s position would have taken those precautions. Normative causation: ‘appropriate for the scope of the negligent person’s liability to extend to the harm so caused’.

13. Discussion 1 No decision turning solely on defensive medicine. Strongest comment Crennan J in Tabet v Gett. Policy considerations which tell against altering the present requirement of proof of causation in cases of medical negligence include the prospect of thereby encouraging defensive medicine, the impact of that on the Medicare system and private medical insurance schemes and the impact of any change to the basis of liability on professional liability insurance of medical practitioners.

14. Discussion 2 Doubt as to practical effects. Spigelman CJ in Presland. The Court ought to be slow to conclude that a medical practitioner, acting true to his or her profession, would permit the process of formulating a professional opinion to be distorted by the prospect of civil liability. Supported by the Salem & Forster conclusions in 2009.

15. Discussion 3 Incremental impact?. Spigelman CJ in Presland. The spectre of defensive medicine influences from a single case may not add much to such judicial incentives as may already exist, to practise defensive medicine.

16. Discussion 4 Caselaw lacks evidence to support submissions. Bret Walker SC during argument in Tabet. Defensive medicine submissions are ‘rarely if ever accompanied by anything in the nature of even the most exiguous empirical demonstration from behaviour in systems benighted by such forms of recovery that can be regarded as over defensive and due to doctors’ perceptions or medical administrators’ perceptions of that form of recovery’.

17. Discussion 5 Sidaway 1985 (30 years ago). It may be that in matters of civil wrong or tort, courts are concerned with legal principle and if policy problems emerge, they are best left to the legislature.