Madden, Bill; Cockburn, Tina --- "Questions about multidisciplinary teams" [2015] PrecedentAULA 19; (2015) 127 Precedent 12

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QUESTIONS ABOUT MULTI-DISCIPLINARY TEAMS

By Bill Madden and Tina Cockburn

Multidisciplinary care (MDC) involves health professionals from a range of disciplines working together as a team (a multidisciplinary team – MDT) to deliver comprehensive care that addresses as many of a patient's needs as possible.^[1]

Writing in 2011, Wilcoxon and others concluded: ‘Multidisciplinary care is accepted as best practice in cancer treatment planning and care.’^[2] Yet their report (of the national audit of multidisciplinary cancer care in Australia) indicated that two-thirds of the surveyed hospitals did not have a MDT. Further, they found that where teams did exist, one-third of patients were not told that their case would be discussed by the team; the MDT-recommended treatment plan was not included in the patient’s record one-quarter of the time; and less than 1 per cent of teams reported routine attendance by the tumour-specific minimum core team.

There is sparse case authority as to the potential medico-legal consequences of MDC by MDTs. This article raises five questions about legal aspects of MDC for consideration. The questions are not limited to cancer care, as MDTs are increasingly used in other areas of medicine.

1 HAS THE FAILURE TO ARRANGE MDT CONSIDERATION OF A PATIENT BEEN HELD TO BE A BREACH OF DUTY?

Research findings suggest that MDC is ‘best practice’ in that it may contribute to better patient survival rates, increased patient satisfaction, reduced costs, increased recruitment into clinical trials and shorter waiting time to treatment.^[3] Despite this, as far as the authors are aware, there is yet to be an Australian decision in which the failure to arrange an MDT consideration of a patient has been held to be determinative of a breach of duty. However, courts have recognised, albeit in passing, that referral to an MDT may be the appropriate or preferred model of care. For example, in Varipatis v Almario [2013] NSWCA 76 at [18], Basten JA said:

‘The plaintiff accepted, at least in this Court, that the preferred course for the treatment of obesity was a medical multidisciplinary approach. The weight of the evidence given by the endocrinologists and hepatologists ...was that referral to a surgeon by them would have been possible but unlikely....’

The litigation outcome in Varipatis v Almario did not turn on the MDT issue, as Mr Almario did not call any evidence as to the likely course that would have been taken had he been referred to the Royal Prince Alfred Hospital obesity clinic (MDT), but had been unsuccessful in reducing his weight sufficiently. (At [19]).

In other decisions it has been accepted, as part of a causation analysis, that MDT referral or consideration would have occurred in best practice, such as in Gary James Le Brun (An Incapable Person Suing by His Next Friend Elaine Le Brun) v Joseph & Ors [2006] WADC 200 at [376] where the trial judge said:

‘According to the uncontested evidence of Dr McAuliffe, which I accept, in 1999 most patients who were diagnosed with an AVM^[4] in Australia were referred at an early stage to a multidisciplinary body of specialists known as the AVM Board. .... Each Board was an interdisciplinary group which reviewed new cases and made recommendations to the patient as to treatment, if any. In 1999 it was not essential for a newly diagnosed patient to be referred to an AVM Board before embarking upon treatment, but this was usual in the case of publicly funded patients such as the plaintiff. I find that the plaintiff would have been referred to the AVM Board in Perth.’

2 MIGHT LIABILITY FOR BREACH OF PRIVACY OR CONFIDENTIALITY ARISE IF A PATIENT IS NOT TOLD THAT HIS OR HER HISTORY WILL BE DISCUSSED BY MDT MEMBERS?

As noted above, Wilcoxon et al reported that one-third of patients were not told that their case would be discussed by an MDT. Without consent to information disclosure, sharing patient medical information in the course of MDC may give rise to privacy and confidentiality concerns. In this context, consent may require that patients understand the purpose of the multidisciplinary meeting, the disciplines that may participate in discussions, those who may be present in an observational capacity, and what information about their health and medical history, including psychosocial history, will be shared with the team.^[5]

This issue is not novel, in that the disclosure of patient information by one health practitioner to another in the course of MDC was the subject of a decision and an article over 10 years ago.^[6]

In KJ v Wentworth Area Health Service,^[7] KJ was treated for cancer at the Nepean Cancer Care Centre (Nepean Hospital). She consulted a psychologist and, in the psychologist’s absence, a psychiatrist. Both the psychologist and the psychiatrist placed notes on her general medical file. KJ complained to the health authority that at no time was she informed about what records were being created about her, how they were to be used or to whom they were to be disclosed. KJ subsequently obtained copies of her medical records and discovered that information about her psychology treatment had been placed on her general medical file.

KJ asserted, successfully, that the health authority had breached Information Privacy Principle 3 (as it then was), by the psychiatrist’s and the psychologist’s action in placing their clinical notes on her general medical record file and thus making them available to others without her consent.

KJ also asked for a referral of the ‘systemic problem’ of privacy protection of patient information within multidisciplinary treating teams for consideration by the Minister of Health and the Privacy Commissioner.^[8] She argued that there was a ‘lack of alignment between the expectations of patients about how their privacy will be respected and a culture of disclosure that exists in the medical community’.^[9] As at the time (2004) the Health Records and Information Privacy Act 2002 (NSW) (HRIPA) was soon to be implemented, the Tribunal chose not to refer the matter to the Minister and the Privacy Commissioner.^[10] In her article, Connolly commented that the new HRIPA test of:

‘when information can be exchanged among members of a multidisciplinary team includes a requirement that such disclosure is within the “reasonable expectation” of the patient. On paper this may seem like an easier test (because explicit consent is no longer required). In practice it may be difficult to argue that the reasonable expectations test has been met. As KJ’s case demonstrates, there may be a wide range of expectations, and there is no certainty about how the courts may interpret reasonable expectations in a multidisciplinary environment.’’^[11]

Outside the statutory privacy framework, there remains of course the obligation of confidence between a patient and a doctor. The equitable doctrine was discussed in Richards v Kadian [2005] NSWCA 328 at [84], in the context of a possible waiver of confidence by the issue of court proceedings. At the trial stage, Kadian v Richards [2004] NSWSC 382 Campbell J summarised the relevant principles at [44] – [45]:

‘[44] A doctor is under a duty not to voluntarily disclose, without the consent of his or her patient, information which the doctor has gained in his or her professional capacity save in very exceptional circumstances: Hunter v Mann [1974] QB 767 at 772.

[45] Those “very exceptional circumstances” include circumstances where the information which the doctor obtains is information which, if not disclosed, could endanger the lives or health of others (W v Edgell and Others [1990] Ch 359; [1996] 1 All ER 835), where the information which the doctor gains in the relationship is information concerning a dishonesty or other “iniquity” inherently incapable of being the subject matter of an obligation of confidence (Gartside v Outram (1856) 26 LJ Ch 113; Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) and Another [1987] FCA 266; (1987) 14 FCR 434), where the information is acquired in the course of an actual or reasonably apprehended breach of the criminal law (A and Others v Hayden and Others [1984] HCA 67; (1984) 156 CLR 532; Grofam Pty Ltd and Others v KPMG Peat Marwick and Others [1993] FCA 343; (1993) 43 FCR 396), or where a statute requires certain types of information to be disclosed (Hunter v Mann [1974] 1 QB 767). See also Halls v Mitchell [1928] 2 DLR 97; [1928] SCR 125 (quoted at para [159] below), and P Finn, “Professionals & Confidentiality” (1992) 14 (Syd LR) 317.’

Accordingly, it seems arguable that, in the absence of consent, a privacy-sensitive patient, not told of a planned MDT, may seek damages for disclosure of information (or at least some information) by a treating clinician to a MDT.

3 MIGHT MDT MEMBERS BE LIABLE AS A RESULT OF DEFICIENT PATIENT RECORDS?

Wilcoxon reported that the MDT-recommended treatment plan was not included in one-quarter of patients’ records. As team members can only make proper decisions based on information that is provided to the meeting, it is obviously important that accurate and comprehensive information about the patient’s relevant medical history and diagnostic tests results are available, and recorded in his or her records.^[12] In particular, absent or incomplete records of the conclusions reached by the MDT may have medico-legal significance should a patient suffer harm as a result of relevant information not being accurately recorded and communicated.

Further, from the viewpoint of health practitioners, inadequate record keeping may give rise to unsatisfactory professional conduct obligations complaints.^[13] Section 8.4 of the Medical Board of Australia’s Code of Conduct: Good Medical Practice states that maintaining clear and accurate records is essential. Section 8.4.1 provides that this involves keeping accurate, up-to-date and legible records that report relevant details of clinical history, clinical findings, investigations, the information given to patients, medication and other management.^[14]

Again, there appear to be no reported Australian cases, in an MDT setting, demonstrating liability arising from deficient record keeping in an MDT setting. However other examples do exist, such as Young v Central Australian Aboriginal Congress Inc [2008] NTSC 47, where the defendant was described at [156] as a multidisciplinary medical institution. The findings as to breach of duty in that matter were founded in part on a record-keeping failure, in that an entry was not placed in the correct patient’s file, hence a specialist referral was not actioned (at [178]).

Failure to maintain and communicate accurate patient records also underpinned the findings in Idameneo (No. 123) Pty Ltd v Dr Colin Gross [2012] NSWCA 423 at [12].

Accordingly, as a matter of principle, it seems uncontroversial that a practitioner or organisation may be held liable for a MDT record-keeping failure which is shown to have caused some damage to a patient.

4 MIGHT THE MDT’S OMISSION TO CONVEY TO A PATIENT VARYING OR DISSENTING OPINIONS FORM PART OF A ‘FAILURE TO WARN’ CLAIM?

In 2008, Sidholm and Poulsen reported that even though 85 per cent of doctors have disagreed with a final multidisciplinary team decision in an important way at some time, 71 per cent did not formally dissent on those occasions.^[15]

Assuming that the lack of formal dissent was later reflected in a lack of communication of that information to a patient, might liability arise – either for the lead clinician who assumed the role of patient communication, or the silent dissenter?

The answer will no doubt be fact-sensitive; however, it is relevant to note Richards v Rahilly [2005] NSWSC 352, a decision which concerned the treatment of an infant suffering seizures. In that case, the court was called upon to address whether there was an obligation on the hospital to explain all reasonable treatment options, but found against such a broad proposition. Hoeben J at [235] said:

‘The submission is put in such broad terms as to make its implementation unworkable as a matter of practicality. In essence it is submitted that Vigabatrin should have been discussed because it was a ‘legitimate’ treatment that ‘could have worked’. It would impose an impossible burden on the medical profession if a doctor was bound to offer a patient every ‘legitimate’ treatment option that ‘could work’ and discuss the advantages and disadvantages of each option with the patient and then allow the patient to choose his or her option.’

Despite the finding in Richards v Rahilly, it is probably not safe to assume that it will always be sufficient to offer only one option. For example, in Zaltron v Raptis [2001] SASC 209, Martin J at [24] agreed that the existence of an alternate diagnosis is a matter that should have been considered in determining the content of the advice to be given to the patient. That may be particularly so in the context of the proactive duty to inform a questioning patient.^[16]

An example of the information communication responsibility of a lead clinician can be seen in South Eastern Sydney Area Health Service v King [2006] NSWCA 2 at [75] per Hunt AJA, in which regular weekly meetings of the hospital’s paediatric oncology group also discussed the formulation of her patient’s treatment:

‘There was no dispute in this appeal that Professor O'Gorman-Hughes had a duty to warn the respondent's parents of the risk of paraplegia or quadriplegia in the treatment he proposed for their 13-year-old daughter. The judge’s finding that he did not perform that duty has not been challenged....’

5 PERSONAL AND ORGANISATIONAL LIABILITY IF THE MDT DECISION IS WRONG

An MDT would not usually be a legal entity, and therefore not able to sued as a team. There is no legal principle which would avoid liability on the part of an individual member of an MDT, save perhaps some statutory provisions which transfer an employee’s liability to their employers. Accordingly, all team members would potentially be joined individually as parties.

An incorrect MDT decision may be traceable to faulty assumptions (such as incorrect or incomplete information being put before an MDT), incorrect communication of a decision or an incorrect clinical decision on the part of an individual. If so, that should permit an identification of an action against the relevant team member/s, not all of them. For example, in South Eastern Sydney Area Health Service & Anor v King [2006] NSWCA 2, referred to above, only the health authority and the lead clinician were sued.

Little argument is likely to arise where a patient alleges that a public hospital is vicariously liable for employee MDT members. Non-delegable duty liability may also arise on account of non-employee MDT members, such as independent contractor doctors, certainly in a public hospital setting. In some circumstances, private hospitals may be held liable by reason of non-delegable duties in respect of independent contractor doctors, particularly if the hospital facilitates an MDT – perhaps by creating it, producing protocols and overseeing its operations. This principle is demonstrated by the case of Sherry v Australasian Conference Association (trading as Sydney Adventist Hospital) and 3 Ors [2006] NSWSC 75. In that case, Simpson J noted at [543] that the defendant hospital did not dispute that it owed the patient a duty of care, nor that the duty of care was a non-delegable one.

CONCLUDING REMARKS

Professor David Studdert, writing in 2008, said:

‘If the first step in a medico-legal analysis of MDC is to recognise that the team and its members may be exposed to liability for their activities, the second step is sober assessment of how large that exposure is, and what can be done to minimise it.’^[17]

The dearth of case law directly addressing MDT liability suggests that the answer to Professor Studdert’s question ‘how large that exposure is’, may be ‘not very large’. However, it is arguable that the absence thus far of a major claim against multiple MDT members, with cross-claim issues, may have left the MDT environment somewhat casually structured, devoid of medico-legal risk management attention. That supposition gains some support from the results reported by Wilcoxon.

Bill Madden is the National Practice Group Leader, Medical Law, Slater & Gordon Lawyers, Sydney. EMAIL [e-mail].

Tina Cockburn is Associate Professor, Australian Centre for Health Law Research, QUT, Brisbane. EMAIL [e-mail].

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^[1] GK Mitchell, JJ Tieman and TM Shelby-James, ‘Multidisciplinary care planning and teamwork in primary care’, (2008), 188(8), Medical Journal of Australia, at S63.

^[2] H Wilcoxon et al, ‘Multidisciplinary cancer care in Australia: A national audit highlights gaps in care and medico-legal risk for clinicians’, (2011), 7, Asia Pacific Journal of Clinical Oncology, at 34-40.

^[3] For a discussion see T Shulman, C Bain, K Gitesh, GK Raikundalia and R Sharma, ‘Obstacles to Sustaining Cancer Care Multidisciplinary Team Meetings: An Australian Survey’, (2013), 2(1), Research In Cancer and Tumour 10-21 DOI: 10.5923/j.rct.20130201.02; D Studdert , ‘Can liability rules keep pace with best practice? The case of multidisciplinary cancer care’, (2008) 188(7)MJA, 188(7), 380-1; P Grusenmeyer, N Petrelli, P Strusowski, ‘Developing and operating multidisciplinary disease specific clinics’ (2006), 3(6), Community Oncology, at 385-7.

^[4] Arteriovenous malformations (AVMs) are defects of the circulatory system that are generally believed to arise during embryonic or foetal development or soon after birth.

^[5] Alison C Evans, Helen M Zorbas, Megan A Keaney, Mark A Sidhom, Holly E Goodwin and Janice C Peterson, ‘Medico-legal implications of a multidisciplinary approach to cancer care: consensus recommendations from a national workshop’, (2008) 188, Medical Journal of Australia, 401-4, at 402.

^[6] C Connolly, ‘Managing patient consent in a multidisciplinary team environment – KJ v Wentworth Area Health Service and its implications for HRIPA’ (2004) 11(2), Privacy Law and Policy Reporter 29.

^[7] [2004] NSWADT 84.

^[8] Ibid at [14].

^[9] Ibid at [63].

^[10] [2004] NSWADT at [65].

^[11] C Connolly, see note 6 above, at 30.

^[12] JM Blazeby, L Wilson, C Metcalfe et al, Analysis of clinical decision making in multi-disciplinary cancer teams’ (2006) 17, Annals of Oncology, 457-60; Alison C Evans, Helen M Zorbas, Megan A Keaney, Mark A Sidhom, Holly E Goodwin and Janice C Peterson, ‘Medico-legal implications of a multidisciplinary approach to cancer care: consensus recommendations from a national workshop’, (2008) 188, Medical Journal of Australia, 401-4, at 403.

^[13] Health Care Complaints Commission v Street [2014] NSWCATOD 124.

^[14] AMC Good Medical Practice: A Code of Conduct for Doctors in Australia, available online at http://www.amc.org.au/joomla-files/images/Final_Code.pdf, accessed 19 March 2013.

^[15] Sidhom & Poulsen, ‘Group decisions in oncology: Doctors’ perceptions of legal responsibilities arising from multidisciplinary meetings’, (2008) 52, Journal of Medical Imaging and Radiation Oncology, 287-92. For a discussion of how systemic errors and biases in judgements and decisions arising out of group decision-making in MDTs may raise patient safety issues, see R Mannion and C Thompson, ‘Systematic biases in group decision-making: implications for patient safety’ (2014)26 (6) International Journal for Quality in Health Care 606-12.

^[16] Rogers v Whitaker [1992] HCA 58 at [5] (Gaudron J).

^[17] Professor D Studdert ‘Can liability rules keep pace with best practice? The case of multidisciplinary cancer care’, (2008) 188, Medical Journal of Australia, 380-1.