Modern Australian
Men's Weekly

.

Doctors do not face a greater legal risk if they give AstraZeneca to younger Australians — here's why

  • Written by Cameron Stewart, Professor at Sydney Law School, University of Sydney

Last week, the federal government changed its recommendation for COVID-19 vaccines. The Pfizer vaccine is now the “preferred” jab for adults under 50.

Amid the political fallout and worries about what it means for Australia’s COVID recovery, doctors have expressed concern about their liability. Some said they would even stop giving the AstraZeneca jab until they were more certain of their position.

Read more: New AstraZeneca advice is a safer path, but it's damaged vaccine confidence. The government must urgently restore it

Are they at greater legal risk if they give AstraZeneca to younger Australians? The government insists they are not. This is correct — here’s why.

Proving fault

In Australia, medical liability is, for the most part, fault-based. This means patients who are injured by medicines, medical devices and medical interventions must prove the doctors who used them were to blame for any injury they suffered before any compensation will be paid.

Australian liability laws are state-based, but generally speaking, fault can only be proven when the doctor has acted outside of the professional standard of care in a way that is not supported widely in Australia by professional peers.

What is the standard of care?

The standard of care for diagnosis and treatment is effectively set by the medical profession. In cases — such as COVID vaccines — where the treatment is new and knowledge about the treatment is emerging, the standard of care is also developing.

Importantly, doctors are judged by measuring their behaviour against the standard of care at the time the treatment was given. This means that if, in 2020 a doctor administers a COVID vaccine in a way that was supported by their peers at that time, they will not be found to have breached the standard of care if, years later, other side effects become known.

Prime Minister Scott Morrison inspecting AstraZeneca production. Last week the Morrison government changed its advice around the AstraZeneca vaccine. David Caird/AAP

We should also be careful not to automatically equate the government’s advice concerning the AstraZeneca vaccine with what the standard of care should be at the individual level.

The government’s advice is concerned with the big picture and with risks across a population. Doctors have the task of treating individuals. So, the government’s advice should be considered by doctors when working out which vaccines to offer to patients, but there may well be situations where the AstraZeneca is the best option for individual adult patients under 50.

Giving advice and accepting risks

Doctors also have a duty to inform individual patients about material risks of the treatments they provide. Every intervention comes with a set of risks but only the material ones need to be disclosed.

Material risks include those the profession would usually notify patients of (objective material risks), as well as risks the individual patient may have a particular concern about (subjective material risks).

The classic example of this is the 1993 case of Rogers v Whitaker where a woman who was blind in one eye was considering cosmetic surgery on that eye. She was concerned about any risk (no matter how remote) of going blind in her “good eye”. Later, she became blind from a complication of her treatment, which was known but very rare. The doctor’s failure to inform her was considered a breach of the duty to inform — even though it was not a risk normally disclosed — because the risk was subjectively material to her.

Again, the doctor will always be judged by what the profession knew at the time regarding these risks. If a patient is told about the material risks of the treatment and decides to go ahead with the treatment, the doctor has satisfied their legal duty to advise and cannot be held liable for subsequent injuries.

What now for GPs and AstraZeneca?

As long as doctors consider the government advice, keep up with professional news about best practice and communicate material risks to patients, they face no greater liability for providing COVID vaccines than they do for any other treatment.

The reality is the risks of people being injured by vaccines, and of doctors being sued for vaccine-related injury, is incredibly low.

At the weekend, the Australian Medical Association also said if a patient makes an informed decision to receive the AstraZeneca vaccine, GPs are protected under professional indemnity insurance.

Of course, the reality of low risk may not match the fear practitioners experience. So, are there things we can do to reduce the anxiety practitioners feel regarding liability?

Read more: Bad reactions to the COVID vaccine will be rare, but Australians deserve a proper compensation scheme

One obvious measure is to move to no-fault systems of compensation. Many countries including the United States and New Zealand have no-fault compensation schemes for vaccine-related injury. Putting such a scheme in place may very well help doctors get over the fear of being sued. It might also give patients confidence knowing that in an extremely rare case of injury, they will be covered.

This could be done either with a one-off scheme or by expanding the National Injury Insurance Scheme, which covers personal injuries from motor vehicle accidents.

Without such schemes, Australian patients will only have access to compensation for vaccine-related injury if they can prove it was caused by a failure to act according to medical standards of care or a failure to properly inform the patient of material risks.

Authors: Cameron Stewart, Professor at Sydney Law School, University of Sydney

Read more https://theconversation.com/doctors-do-not-face-a-greater-legal-risk-if-they-give-astrazeneca-to-younger-australians-heres-why-158789

7 Common Air Conditioner Issues in Melbourne – And How to Fix Them

Image by freepik Living in Melbourne, we all know how unpredictable the weather can be. One moment it’s cold and windy, the next it’s a scorchin...

Powering Palm QLD with Reliable Electrical Solutions

Image by pvproductions on Freepik When it comes to finding a trustworthy electrician Palm QLD locals can count on, the team at East Coast Sparkies s...

The Smart Way to Grow Online: SEO Management Sydney Businesses Can Rely On

If you’re a Sydney-based business owner, you already know the digital space is crowded. But with the right strategy, you don’t need to shout the...

What Your Car Says About You: The Personality Behind the Vehicle

You can tell a lot about someone by the car they drive—or at least, that’s what people think. True Blue Mobile Mechanics reckon the car says a l...

The Confidence Curve: Why Boudoir Photography Is the Empowerment Trend You Didn’t Know You Needed

Boudoir photography has been quietly taking over social feeds, Pinterest boards, and personal milestones—and for good reason. It’s not just abou...

Understanding Level 2 Electricians: Why Sydney Residents Need Licenced Experts for Complex Electrical Work

When it comes to electrical work around the home or business, not all electricians are created equal. In Sydney, particularly when you're dealing wi...

Retirement Anchored in Model Boat Building for Waterford’s Doug Unsold

WATERFORD — When Doug Unsold sees his ship come in, it’s usually one he’s crafted with his own hands. The 67-year-old retiree from Waterford ...

The Science Behind Alarm Clocks and Your Circadian Rhythm

Waking up on time isn’t just about setting an alarm—it’s about working with your body, not against it. At the heart of every restful night and...

How to Use Plants to Create a Calming Atmosphere in Your Home

In today’s fast-paced world, cultivating a calm, soothing environment at home has never been more important. Whether you live in a busy urban apar...

How Maths Tutoring Can Help Students Master Maths

Mathematics can be a daunting subject for many students, often causing stress and frustration. However, maths tutoring has proven to be an effective...

Refurbished iPads Are Better Than New Ones (Here's Why)

Image by rawpixel.com on Freepik Apple's refurbished iPad program has quietly become one of the best deals in tech. While everyone obsesses over the ...

Your Guide to Finding the Right GP: What Perth City Doctors Offer Today

Choosing a General Practitioner (GP) is one of the most important health decisions you’ll make. Luckily, Perth’s vibrant CBD now hosts a new ge...

Why Every Mining Operation Needs a Robust Safety Management System

Mining is one of the backbones of the Australian economy, particularly in Western Australia. Back in 2019-20, mining contributed 10.4% of Australia...

Australian Classic Literature Enjoys Resurgence

Welcome back to the good old days of storytelling! As the modern world becomes increasingly more demanding, returning to childhood favourites offers...

How to Choose the Right Lawyers in Sydney for Your Situation

When faced with a legal issue, selecting the right legal representation can make all the difference. Whether you're dealing with a personal injury, ...

Building a Governance Model for Headless Content Management at Scale

Image by pch.vector on Freepik There's never been a better time to implement a headless content management system (CMS) to gain the flexibility and ...

Understanding Trade Insurance: Essential Protection for Businesses

Image by Drazen Zigic on Freepik In the current economic environment, trade insurance is an important element for companies trading both locally an...

Choosing the Right Timber for External Cladding

Timber cladding is one of those finishes that pulls double duty: it makes a building look warm and welcoming, and it quietly shields the frame from ...