Physicians’ legal duty to disclose more cost-effective treatment options: an examination of Australian civil law applied to personal importation
Narcyz Ghinea
A *
+ Author Affiliations
- Author Affiliations
A Philosophy Department, Faculty of Arts, Centre for Agency, Values and Ethics, Macquarie University, North Ryde, NSW 2109, Australia.
* Correspondence to: narcyz.ghinea@mq.edu.au
Australian Health Review 47(3) 314-321 https://doi.org/10.1071/AH23008
Submitted: 16 January 2023 Accepted: 29 March 2023 Published: 24 April 2023
© 2023 The Author(s) (or their employer(s)). Published by CSIRO Publishing on behalf of AHHA. This is an open access article distributed under the Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License (CC BY-NC-ND)
Abstract
Objective A significant proportion of Australians defer or do not fill prescriptions they require due to cost. This article explores whether, and under what circumstances, physicians have a duty to assist these patients by disclosing how they can access more affordable medicines via personal importation.
Methods This study involved a critical examination of Australian statutory and case law pertaining to physicians’ duty to disclose material information to identify key principles applicable to the context of cost-motivated personal importation.
Results There are several legal principles that suggest that physicians have a duty to advise patients of options for accessing more affordable medicines, including via personal importation. These include a duty to warn of inherent and non-inherent risks, a duty to disclose treatments that offer clear advantages, and a duty to facilitate access to the means for achieving patients’ health goals. However, it is unclear whether, and on what grounds, responsibility for harm arising from a patient's inability to afford prescribed medicines should be attributed to the prescribing physician. Arguments supporting attribution of such a responsibility are proposed to motivate further legal, policy and ethical debate.
Conclusions Physicians have a duty to take reasonable steps to mitigate foreseeable harm to their patients, however the law is silent on whether this duty extends to taking steps to help patients access medicines that they can afford. This investigation provides a framework to guide the development of sound policy and law on informed financial consent and economically motivated prescribing.
Keywords: affordability, clinical ethics, duty of care, informed consent, legal duty, negligence, pharmaceuticals, Personal Importation Scheme.
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