Last week, the Australian 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.
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.
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.
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?
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.Cameron Stewart, Professor at Sydney Law School, University of Sydney