Australasian Law Teachers Conference (Sydney, NSW, Australia), 3 October 1997.
Very little legal literature has been written on the issue of infant male circumcision. This paper discusses the concept of informed consent generally and as it applies to infant male circumcision. It is suggested that without disclosing the material risks of this procedure to parents, doctors face an appreciable risk a negligence action should something go wrong.
Infant male circumcision has been the focus of some media attention1 and legal writing2 in recent times, suggesting that due to medical risks, parents cannot give an effective consent to the procedure, and that doctors and parents are at risk of an injured child or representative bringing a civil action against either or both of them.
In previous publications,3 this author disagreed with the conclusion that a parental consent might be vitiated and hence held ineffective by a court. It was argued that parents and doctors are not acting unreasonably while some medical justification can be shown for the procedure, and that the State is currently not justified in prohibiting the practice of infant male circumcision.
Haberfield argued in 1997 that parents should have a right to circumcise children because there may be some medical benefit attached to neonatal circumcision. Several medical societies in the United States and the United Kingdom have issued position statements since 1997 that generally state that neonatal circumcision is a non-therapeutic procedure that has no medical indication and cannot be recommended on any medical basis and furthermore that the risks, complications, and drawbacks outweigh any possible benefit. These medical societies include the American Academy of Pediatrics, the American Medical Association, and the American Academy of Family Physicians in the United States, and a joint statement by the Royal College of Surgeons, the British Association of Paediatric Surgeons and other organisations in the United Kingdom. Haberfield's major premise (that male neonatal circumcision has medical value) for his argument seems increasingly dubious.
Where doctors may be at risk of litigation, however, is where they perform a circumcision procedure without giving appropriate information (including the risks of the procedure) to parents to enable them to give an informed consent. Should something go wrong in these circumstances, doctors may find themselves liable in negligence.
The question of doctors providing adequate information to patients to make appropriate decisions concerning surgery arose in a number of Australian courts and in other common law jurisdictions in the 1980s.4
The need for a definitive statement on the law in this area was finally disclosed when the issue reached the High Court in Rogers v. Whitaker5 in 1992.
In that case, a patient underwent an elective operation on her right eye for both therapeutic and cosmetic purposes. At a consultation prior to surgery, the patient persistently questioned the surgeon about possible complications and accidental interference to her left eye. The subsequent operation failed to improve sight in her right eye as a result of the surgery, and the patient contracted a condition known as "sympathetic opthalmia" affecting her left eye and leaving her virtually blind.
While the patient failed to specifically ask about the possibility of sympathetic ophthalmia, her persistent questioning of the doctor should have been sufficient indication to him to reveal the risk of this complication, however small. It had been accepted at the trial that the condition occurred on average only once every fourteen thousand such procedures.6
The High Court held, in the case, that a doctor has a duty to exercise reasonable care both in the provision of professional advice as well as treatment.7 A doctor has a duty to warn a patient of material risks inherent in a proposed procedure or treatment. A risk is material if, in the circumstances of the particular case, reasonable person in the patients condition, if warned of the risk, would be likely to attach significance to it. Alliteratively, a risk is also material if the doctor is, or should have been aware from the circumstances that the particular patient would have attached significance to the risk. In this case, "the fact that the patient asked questions revealing concern about the risk [to her good eye] made the doctor aware that this patient did in fact attach significance to the risk."8 Accordingly, the surgeon was negligent in failing to disclose the risk of sympathetic ophthalmia.
The High Court specifically rejected the English approach of Bolam V. Friern Hospital Management Committee9 which suggests that a doctor is not negligent if he acts in accordance with a practice of disclosure accepted as appropriate by a responsible body of medical opinion, even if other doctors adopt a different practice. The High Court majority stated that "while evidence of acceptable medical practice is a useful guide for the courts, it is for the courts to adjudicate on what is the appropriate standard of care"10 after giving weight to a person's right to make decisions about his own life.
In the few years since the decision of Rogers v. Whitaker,11 a number of courts in Australia have applied the principles of that case. In Teik Huat Tai v. Saxon,12 for example, the Western Australian Supreme Court found an obstetrician and gynaecologist negligent in failing to advise that recto-vaginal fistula could occur following hysterectomy and vaginal damage. The Court accepted that the risk of recto-vaginal damage following hysterectomy was not high. In the opinion of one expert called for he appellant doctor, the risk of perforation of the bowel during vaginal hysterectomy was at most one in 500, and once repaired there was only one in 200 chance of the repaired perforation leaking. While not life-threatening, the leakage of faeces through the vagina may be a very unpleasant experience affecting the woman's self-esteem. The Court was prepared to accept that, had the respondent been warned of the risk, she would not have had the operation.
In Dunning v. Scheiber,13 the plaintiff, in electing to have tatoos removed from her back and arms by laser treatment, suffered severe pain following treatment, significant scarring (sensitive to heat and painful when bumped), and altered skin appearance. The Court found that the patient was not given a sufficient explanation of the effects of laser treatment and associated risks, and accordingly held the doctor negligent.
Two Queensland decisions also demonstrate the application of these principles in cases of elective or cosmetic surgery. In Shaw v. Langley,14 a surgeon was found negligent in failing to disclose all material risks where a plaintiff seeking breast augmentation mammaplasty was left with scarring, asymmetrical breasts following the procedure. In Tekanawa v. Millican,15 a doctor had failed to tell a patient of the potential and likely range of results following a "tummy tuck" operation. While the medical evidence showed that her level of subsequent scarring was not totally unexpected following surgery,16 the plaintiff had reasonably believed on the basis of her discussions with the surgeon that the scar would hardly be noticeable within a year of surgery. In these circumstances, the doctor was held to be negligent. It is worth noting in this case that while the doctor had given the patient an information circular on the procedure, it was insufficient and misleading in relation to the likely scarring the patient eventually suffered, and accordingly failed to protect the medical practitioner from liability.
Further application of these principles are found in Chappel v Hart,17 where an ENT surgeon was held to be negligent in failing to warn a patient having throat surgery, that the operation could seriously affect the quality of her voice.
Similarly in Hribar v. Wells18a dental surgeon who performed an osteotomy on the plaintiff's jaw to correct a malocclusion was found to be negligent in failing to advise her of the risk of permanent numbness around her lips and mouth.
Most of the cases following Rogers v. Whitaker19 have involved elective surgery of a cosmetic nature. It would seem that a plaintiff will find it easier to succeed in these circumstances since the necessary element of causation is more readily demonstrated. That is, if a patient is warned of a serious risk of an adverse result (from his or her point of view) in elective surgery, he or she would be less likely to consent to a procedure. Additionally, the standard of care expected might increase in such cases. In Tekanawa v. Millican, for example, the Court suggested that the duty of care is perhaps even higher when the procedure being contemplated is truly elective and not required for therapeutic purposes.20
In Karpati v. Spira & Ors,21 on the other hand, the New South Wales Supreme Court found that a surgeon was not negligent in the provision of advice prior to performing a stereotactic thalamotomy to treat a Parkinsonian tremor in the plaintiff's right arm. This procedure is performed only as a last resort when medication is no longer controlling Parkinsonian tremors. While the evidence showed that there was a five percent risk of stroke associated with the procedure (eventually suffered by the plaintiff, there was substantial evidence that the plaintiff was prepared to accept the risk of stroke in view of the operation's high success rate and the discomfort associated with his condition. In these circumstances, the plaintiff could not establish causation since, he could not show that the lack of warning concerning the risk of stroke influenced his decision to consent to surgery.
The recent New South Wales Court of Appeal decision in Lowns v. Woods22 is also instructive on this point. The majority of Kirby P and Mahoney JA found that a specialist was not negligent in failing to advise a patient's mother about the possibility of using rectal Valium to stop the epileptic fit the plaintiff (given an assessment and understanding of the prevailing medical opinions concerning such treatment at the time). The majority however were persuaded by the additional reason of the lack of causation in the case. The court considered that it was improbable, even if the advice was given, that the plaintiff's mother would have acquired the rectal Valium before the critical seizure of the child.
In general, however, it is clear that doctors should disclose material information relevant to a particular patient. The High Court in Rogers v. Whitaker23 suggested that what should be disclosed depended upon a complex of factors including the nature of the treatment, the nature of the matter to be disclosed, the desire of the patient for information, the temperament and health of the patient, and the general surrounding circumstances. While this has some "ring of conceptual certainty, in practice deciding the level of necessary disclosure is problematic.
The National Health and Medical Council has produced much-needed general guidelines24 for doctors which summarises, and to some extent expands, the general duty of disclosure owed by medical practitioners to their patients.
This publication is both a direct result of the significance of Rogers v. Whitaker25 to medical practice and the recommendations of a joint Law Reforms Commission Study on "Informed Decisions about Medical Practice" published in 1989.26
The Law Reforms Commission study surveyed a number of doctors and patients and found that less than half the doctors surveyed recognised a patient's "right to know" information27. The report further found that only two-thirds of doctors surveyed could give even a minimal definition of informed consent, and less than half thought it necessary or important.28 In contrast, however, 92 percent of surveyed patients indicated that they want to be told everything about their treatment, even if unfavorable.29
It might be interesting to perform a follow-up empirical study or survey to see what effect, if any, the above litigation and professional literature has had on the medical profession's attitude to the dissemination of information to the consent of patients to medical treatment.
While the popularity of routine infant male circumcision has fallen significantly in the past two decades, conservative estimates show that the procedure is performed on about ten percent of male infants in Australia today.30
The fall in the rate of infant routine male circumcision reflects a decreased enthusiasm for the procedure by the medical profession in Australia in that period. The Australian Medical Association stated in 1993 that the practice of circumcision of newborn males is generally discouraged by the medical profession.31The position of the Australian College of Paediatrics in 1991 was one which, while allowing that some parents will still opt for the procedure after considering all relevant factors, discouraged the practice.32
Since that time, new benefits have been claimed for infant male circumcision including a reduction in the risk of urinary tract infection in infants. Other benefits claimed include greater hygiene, a decreased risk of penile cancer, and while the evidence is inconclusive, some studies show a decrease in the likelihood of sexually transmitted diseases in the circumcised male.33
Accordingly, the Australian College of Paediatrics has again altered its stance to a more neutral position and stated that "it is not possible to be dogmatic on the exact risk/benefit ratio."34 It neither recommends nor discourages the practice.
While this is the case, there are clearly a number of health risks and disadvantages associated with the practice. These are comprehensively listed in the Queensland Law Reform Commission Research Paper on male circumcision.35 They include pain, unsightly appearance, damage to the shaft, damage to the urethra, urethral fistulas, haemorrhage, infection of the incision line, phimosis as a result of inadequate circumcision, infection of meatus, and even amputation or death.
It is clear since Rogers v. Whitaker36 that a doctor must disclose material risks inherent in a medical procedure, and the failure to do so might leave a doctor liable in negligence should something go wrong. The particular risks that should be disclosed in a circumcision procedure are somewhat problematic given the large number of them.
The Australian College of Paediatrics now encourages informed "consent" by parents. Its Position Statement says that "[t]he College believes informed discussion with parents regarding the possible health benefits of routine male circumcision and the risks associated with the operation is essential."37 The only risks mentioned in the Position Statement, however, are infection, bleeding and damage to the glans penis. To limit the statement on risks is understandable given that death38 or amputation,39 for example, is most unlikely.
It should be remembered in Rogers v. Whitaker itself, the chance of sympathetic ophthalmia was accepted as being only one chance in fourteen thousand.40 Of significance in that case, however, was the persistent questioning by the patient. The High Court majority included in material risk which ought to be disclosed, that which a doctor was, or should have been from the circumstances, aware was of significance to the particular patient.41 Accordingly, where parents are anxious about the circumcision procedure, and make it clear that they are concerned to a doctor about the possibility of serious consequences, doctors may be well advised to mention matters such as the risk of amputation and death, however small.
In this context, it is problematic that the exact benefits or risks of complications are not always known exactly and studies may vary in results. For example, while a number of studies indicate that lack of circumcision is a risk factor for HIV infection, a number of other studies indicate little or inconclusive relationship between circumcision status and risk of HIV infection.42 While one recent United States study showed no deaths from 500,000 circumcisions, a 1949 reported British study referred to a United Kingdom mortality rate of 1.8 per 1000 circumcisions.43 This reported rate is nearly three times the risk of sympathetic ophthalmia reported in Rogers v. Whitaker.44
While doctors are often "pressed" for time in their consultations, where a patient is specifically concerned about serious harms (and perhaps even if they don't directly ask about the possibility of death), doctors may be well-served to mention the range of statistics in relation to death. Really defensive practice might suggest that a doctor routinely mention the low incidence of death to all parents before circumcising their child.
It should be noted that except where circumcision is medically indicated for phimosis, paraphimosis, a non-retractable prepuce, recurrent balanitis, or complications from a previous inadequate circumcision,45 in is generally regarded as elective surgery and sometimes even cosmetic surgery, for aesthetic reasons. Some boys are simply circumcised to avoid the discomfort or embarassment of looking different from other males in their family.46
In these circumstances, the cases discussed above have shown greater willingness by courts to hold a doctor liable for failure to disclose sufficient information. In Tekanawa v. Millican,47 discussed above, the Court suggested that an even higher duty of care might be owed in truly elective surgery.48 The National Health and Medical Research Council guidelines, alluded to above also suggest this. The guidelines state that "[c]omplex interventions require more information, as do interventions where the patient has not illness."49 Accordingly, doctors probably need to consider mentioning the most serious consequences of circumcision to all parents considering this surgery.
A number of infant boys in Australia are circumcised for religious reasons. Circumcision of males is mandatory in both Judaism and Islam in accordance with Abraham's covenant with God found in Genesis 17 in the Old Testament. Jewish boys are required to be circumcised at eight days of age. So integral to circumcision to Jewish life, the procedure is even performed on the Sabbath if this should be the eight day of life. Jewish law even requires an infant who dies before the eight day of life to be circumcised at the grave.50 In Islam, on the other hand, circumcision is regarded as a tradition of the prophet, Mohammed, and is generally performed on the newborn. In some communities, it may be performed just prior to puberty.51
Of relevance to Jewish ritual circumcision, in particular, it should be noted that the Australian Association of Paediatric Surgeons takes the view that routine circumcision should not be performed on a child prior to the age of six months.52 For Jewish parents using a medical practitioner to perform routine circumcision on a baby eight days old, it may be appropriate for the Association's view to at least be communicated.
Very orthodox and religious Jews or Muslims may find it more difficult than other parents to succeed at a negligence action where they are not advised of all the material risks in a circumcision procedure. This is not to suggest that they are not owed the same duty of care; the problem here is one of causation. The more compliant a parent is to religious doctrine, the more likely a parent is likely to consent to the circumcision regardless of risk. In that scenario, the failure to provide appropriate information cannot be said to be the cause of a child's injury should something go wrong.
The Australian College of Pediatrics has made the useful recommendation in relation to informed consent and circumcision, that up-to-date, unbiased material summarizing the evidence in plain English should be widely available to parents.53 While this is a positive step, there is no guarantee that published educational material and subsequent discussion will exempt a doctor from liability. It is a question of the material's contents and level of communication between doctor and patient that the courts will ultimately be concerned with. This accords with the decision of Tekanawa v. Millican54discussed above. In that case, the inadequacy of the information circular received by the patient meant that the doctor concerned could not escape liability for negligence.
The decision of Rogers v. Whitaker55 and subseqent cases has brought the clear message to doctors that they must disclose material information about the risks of any proposed treatment or face the possibility of liability in negligence should something go wrong.
While the benefits of infant male circumcision are somewhat uncertain, there clearly are risks to the procedure. The recent Position Statement of the Australian College of Paediatrics56 goes someway towards encouraging an informed discussion with parents about these risks. The comments made by the College, however are brief and general.
Doctors who perform circumcision procedures need to give some thought as to the detailed information that parents should receive, including the risk and consequences of serious harms. Practitioners need to be flexible enough to tailor their discussions to the more anxious parents and to parents who circumcise their children for religious reasons. In the end, a routine circumcision may not be so "routine."
* B Bus (Accounting), BA. LLB (Hons), Dip. Ed; Barrister and Solicitor of the Supreme Court of Victoria; Lecturer in Law at RMIT.
This paper was presented at the Australasian Law Teachers Association Conference in Sydney, NSW, Australia on Friday, 3 October 1997.
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