Issue 43 / 5 November 2012

HOW will the law respond to recently suggested moves away from doctors being proactive in suggesting prostate cancer screening?

In particular, how will it respond to the suggestion that only patients who ask need to be informed of their options?

In the latest editions of the RACGP Guidelines for preventive activities in general practice 8th edition (the Red Book) it says: “Routine screening for prostate cancer with DRE [digital rectal examination], PSA [prostate specific antigen] or trans-abdominal ultrasound is not recommended … GPs need not raise this issue, but if men ask about prostate screening they need to be fully informed of the potential benefits, risks and uncertainties of prostate cancer testing.”

The law, through a 1992 High Court judgment, imposes on a medical practitioner no more of a duty than to exercise reasonable care and skill in the provision of professional advice and treatment.

Legal reforms dating back about 10 years have reinforced this approach by creating a defence for medical practitioners. The wording varies in the various states, but using NSW legislation, a medical practitioner does not incur a liability in negligence arising from the provision of a professional service if it is established that the practitioner acted in a manner that, at the time the service was provided, was widely accepted in Australia by peer professional opinion as competent professional practice.

In theory then, the approach by the courts should be consistent with medical practice. But where does that leave us, when, in discussing prostate cancer screening, the Red Book also concedes that the practice remains “controversial”, that the “medical community remains divided on the issues” and “it is unclear whether the advantages of screening outweigh the harms”?

The courts can disagree with peer medical opinion if the court considers that the opinion is irrational — not “irrational” in a psychiatric sense, but rather where the opinion supports the taking of a risk of causing grave danger, which could have been easily and inexpensively avoided.

Lawyers may feel uneasy at this point, as arguably a PSA test with DRE would fall into the easy and inexpensive category. So might it be “irrational” not to offer such screening?

The new Red Book approach also seems to lean too far towards a paternalistic decision, rather than a respect for patient autonomy, in saying that a medical practitioner “need not raise the issue with every eligible man, but wait until you are asked about screening”.

Put bluntly, why is it only the patient who knows enough to ask the question, who then has the “right” to make his own decision?

Mr Bill Madden is the National Practice Group Leader, Medical Law, with Slater & Gordon.

Posted 5 November 2012

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5 thoughts on “Bill Madden: Need-to-know basis

  1. ruth says:

    In my experience, patients take the raising of an issue by their GP as a cue that it is important. Therefore even raising the issue sends a message. Why would we want to do this when the evidence is equivocal at best? Should we be obliged to raise every unproven test and treatment with all our patients?

  2. Anonymous says:

    The problem GPs face is that the RACGP Red Book position is at odds with the published positions of other medical craft groups. The same data can and has been interpreted differently both here and internationally leading to differing conclusions. As a urological surgeon I am seeing GPs involved in prostate cancer litigation at an ever increasing rate.

  3. J Dickinson says:

    The RACGP Red book position is consistent with the majority of science-based recommendations around the world. Self-interested groups like urologists want to screen, and so do organisations backed by companies that make money from the sale of drugs and tests. The most egregious one is when grocery stores collect contributions for Prostate charities, and encourage screening. The connection is that makers of adult diapers used to market mainly to female buyers. Now, thanks to prostate screening and treatment, the market for urinary incontinence is equal opportunity!

    If anything the Red Book is insufficiently confident about the evidence. The trials clearly show that men are more likely to be harmed than helped by being screened. The US Task Force recommendation makes this clear. Considering the limited time available in practice, it is important to spend it doing actions that are proven valuable than to introduce a topic that on the most hopeful assessment has only a small chance of benefit. It is particularly disturbing that Mr Madden, purporting to be a lawyer who leads a medico-legal practice group thinks that “arguably a PSA test with DRE would fall into the easy and inexpensive category.” The test itself may be, but the consequences of doing it and having a false positive result lead to difficult, expensive and potentially dangerous further investigations and treatment. Once on the pathway, with “just a blood test,” it leads down a very steep cascade of events.

    While we all wish that prostate cancer were not a problem, or that we could improve the outcome, at present we must accept that our ability to detect and treat it is simply not good enough, so it is best left alone. Perhaps men who are harmed by the consequences should sue doctors who DO screen with PSA, especially doctors who did not warn them first. Assisting such men would be a real contribution that lawyers could make.

  4. Anonymous says:

    Last week I saw a 55 yr old man who was diagnosed with prostate cancer. He is the fifth of 5 brothers all diagnosed with clincally significant disease in their 50s. Amenable to treatment due to early diagnosis, and likely to be cured with minimal impact on erectile and urinary function directly related to early detection. The Red Book says a GP should not raise the issue with the imaginary sixth brother. How can that be possibly be justified, or defended in a court of law? Risk stratified testing is the logical approach, and only treating those with clinically significant disease (rest go on to internationally accepted active surveillance protocols) will minimise the harm and maximise the good. USANZ does not advocate screening – see PSA Testing position statement on website – but men should be informed there is a CaP test available, proven to reduce CaP mortality in RCTs

  5. Guy Hibbins says:

    I think that it is problematic to recommend any screening test only for those who ask about it. This is hardly evidence based medicine. What is good for the goose is good for the gander. If screening is not recommended for those who do not ask, how can it be recommended for those who do?
    Moreover according to the WHO’s International Agency for Research on Cancer (IARC), Australia has the highest age-specific incidence of prostate cancer in the world.
    I think that this particular guideline is likely to get tested in the courts with unfortunate outcomes.
    I agree that if we are not going to recommend population screening, then at least there needs to be some guidance as to who might benefit from screening – some sort of risk stratification based upon family history.

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