Under state laws, a medical practitioner will not be found negligent if they acted in a manner that was widely accepted in Australia, by a significant number of respected practitioners in the field, as competent professional practice in the circumstances. This is known as the “peer professional practice defence”.
The professional opinion being relied on must not be unreasonable (Victoria and Western Australia) or irrational (New South Wales and other states).
The peer professional practice defence does not apply to claims of negligence arising from failure to warn patients about risks associated with medical treatment. This reinforces the importance of warning patients of material risks as determined by the High Court of Australia in Rogers v Whitaker.
Recent cases demonstrate the successful operation of the peer professional practice defence, but also highlight its limitations. In practice, the legislation may not shield doctors from negligence claims as fully as originally intended.
- 1. AMA President, Dr Kerryn Phelps — to the Australian Financial Review 5th Annual Health Congress, Sydney — “From here to indemnity” [transcript]. 2003; Feb 26. http://ama.com.au/node/1130 (accessed Aug 2010).
- 2. Civil Liability Act 2002 (NSW), s. 5O.
- 3. Wrongs Act 1958 (Vic), s. 59.
- 4. Civil Liability Act 2002 (WA), s. 5PB.
- 5. Civil Liability Act 1936 (SA), s. 41.
- 6. Civil Liability Act 2002 (Tas), s. 22.
- 7. Civil Liability Act 2003 (Qld), s. 22.
- 8. Bolam v Friern Hospital Management Committee  2 All ER 118.
- 9. Walker v Sydney West Area Health Service  NSWSC 526.
- 10. Sidaway v Governors of Bethlem Royal Hospital  AC 871.
- 11. Rogers v Whitaker  HCA 58; (1992) 175 CLR 479.
- 12. O’Gorman v Sydney South West Area Health Service  NSWSC 1127.
- 13. Melchior and Ors v Sydney Adventist Hospital Ltd and Anor  NSWSC 1282.
- 14. Forster v Hunter New England Health Service  NSWSC 74.
- 15. Thompson v Dr Haasbroek  NSWSC 111.
- 16. Halverson v Dobler  NSWSC 1307.
- 17. Dobler v Halverson (by his tutor Kenneth Halverson) (2007) 70 NSWLR 151.
- 18. Hope v Hunter and New England Area Health Service  NSWDC 307.
- 19. Hope v Hunter and New England Area Health Service  NSWDC 307 at 175.
- 20. Birrell B, Hawthorne L. Medicare Plus and overseas-trained medical doctors. People Place 2004; 12: 83-99.
- 21. Wrongs Act 1958 (Vic), s. 59(5)–(6).
- 22. Civil Liability Act 2002 (NSW), s. 5P.
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