(1) An act or omission
of a health professional is not a negligent act or omission if it is in
accordance with a practice that, at the time of the act or omission, is widely
accepted by the health professional’s peers as competent professional
(2) Subsection (1)
does not apply to an act or omission of a health professional in relation to
informing a person of a risk of injury or death associated with —
treatment proposed for a patient or a foetus being carried by a pregnant
procedure proposed to be conducted for the purpose of diagnosing a condition
of a patient or a foetus being carried by a pregnant patient.
(3) Subsection (1)
applies even if another practice that is widely accepted by the health
professional’s peers as competent professional practice differs from or
conflicts with the practice in accordance with which the health professional
acted or omitted to do something.
(4) Nothing in
subsection (1) prevents a health professional from being liable for negligence
if the practice in accordance with which the health professional acted or
omitted to do something is, in the circumstances of the particular case, so
unreasonable that no reasonable health professional in the health
professional’s position could have acted or omitted to do something in
accordance with that practice.
(5) A practice does
not have to be universally accepted as competent professional practice to be
considered widely accepted as competent professional practice.
(6) In determining
liability for damages for harm caused by the fault of a health professional,
the plaintiff always bears the onus of proving, on the balance of
probabilities, that the applicable standard of care (whether under this
section or any other law) was breached by the defendant.
[Section 5PB inserted: No. 43 of 2004 s. 5.]
[Heading inserted: No. 58 of 2003 s. 8.]