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A practitioner's duty to refer patients for specialist care

Newsletter Article 03 May 2016

Many practitioners find it difficult to strike the right balance between trying to personally address their patients' health concerns and referring them on for specialist treatment.

When endeavouring to access specialist treatment, in many instances, patients can face significant impediments. There is the financial cost to the patient. A $300 specialist fee is simply not affordable for many patients and can lead to a reluctance to follow-up on referrals even when they are provided. There can also be a significant delay in obtaining a specialist appointment which can have a detrimental effect on the patient’s overall health and wellbeing. It may also be necessary for a patient to have to travel significant distances to see such specialists. This causes work, family and social disruption.

Combined with the logistical difficulties, there are other reasons why patients may be reluctant to act on specialist referrals. Many patients develop a trusted relationship with their treating doctor, particularly general practitioners, and there is an understandable reservation in relation to having their often complex health issues scrutinised and reviewed by an unknown practitioner with whom the patient has no existing relationship.

All these factors will influence a practitioner’s decision whether to recommend specialist referral.

However, the practitioner who does not refer a patient on for specialist review when it is required, potentially leaves themself exposed to liability.

The case of Robinson v Ng [2014] ACTSC 227 involved a dentist who whilst attempting a tooth extraction pushed the tooth root into the maxillary sinus. The Court found in favour of the patient and one of the factors taken into consideration was that the dentist had breached his duty by not abandoning the procedure and referring the patient to an oral surgeon or a general dentist with experience in oral surgery. The Court considered the fact that there was no pressing need to continue or any significant problem with getting access to specialist dentists or oral surgeons within a reasonable time. The Court found that the dentist had allowed himself to be encouraged by the patient to continue with the procedure in circumstances where he should not have and where the patient did not understand the risk in doing so.

The case of Varipatis v Almario [2013] NSWCA 76 involved an allegation that a general practitioner failed to refer a morbidly obese patient for bariatric surgery on the basis that weight loss achieved by bariatric surgery would have prevented the development of terminal liver cancer. The Court held that a general practitioner may be obliged, in taking reasonable care for the health of a patient, to advise that weight loss was necessary and to offer referrals to appropriate specialists or clinics. In this case the Court recognised that the general practitioner had in fact already provided referrals previously and noted that if the plaintiff repeatedly refused to take the firm advice of his general practitioner, there was no breach of duty in failing to write a further referral. The Court deemed that in this circumstance, having regard to the patient’s previous behaviour and the previous advice given to him, the provision of a further referral would have been ‘an exercise in futility’.

The case of Mitchell v Health Administration Corporation & Ors [1995] NSWSC involved a plaintiff who suffered severe injuries to his right hand in a motor vehicle accident. He was taken to Bellinger River District Hospital where he underwent a surgical procedure performed by two general practitioners. Complications ensued which resulted in permanent deformities to the patient’s right hand. The issue in the proceedings was whether surgery could have been deferred and the patient referred to a specialist for surgery. The Court held that even though there were difficulties faced by doctors practising in country towns where specialist services may not be readily accessible, failure to refer the patient to a specialist in this case was a breach of duty on the part of the defendants.
 
The case of Kalokerinos v Burnett [1996] NSWSC 288 involved a plaintiff who complained about heavy vaginal bleeding. Her general practitioner referred her to a specialist in Tamworth. The plaintiff advised her general practitioner that she could not travel to Tamworth as she was a pensioner with no car and public transport was inadequate. In response, the general practitioner agreed to instead adopt a conservative approach and see whether the bleeding resolved of its own accord. The heavy vaginal bleeding continued and ultimately the plaintiff was then diagnosed with cervical cancer. The Court held that the doctor failed in his duty. He should have ensured that the plaintiff received specialist attention when she first reported the symptoms by either referring her to a specialist closer to home, or by arranging the necessary transport to Tamworth given that he had adopted this practice with other patients previously.

These cases highlight the need to provide patients with timely specialist referrals. In certain circumstances, the practitioner’s duty may extend to having to facilitate the specialist appointment. Depending upon the patient’s circumstances, the treating practitioner may need to assist in actually making specialist appointments, discussing with the specialist the fees involved and even possibly assisting the patient to make the necessary arrangements to attend the appointment.

It is also of critical importance that treating practitioners document advice given in relation to the need for specialist review and clearly document any refusal by the patient to act on such a referral. The patient also needs to clearly understand the potential risks associated with their failure to act on a referral and should be advised of the serious health complications that could result.

It is a difficult balance for most practitioners to determine when a patient requires referral.  There is also a challenge to ensure patients act on referrals they are given.  In some circumstances, simply providing the referral will not be sufficient to discharge the duty of care owed and additional steps will need to be taken to ensure the patient can genuinely access the services to which they have been referred. 


Kylie Agland, Partner
Sydney
 

Newsletter Article 03 May 2016
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