Testing times Let the doctor decide

Testing times let the doctor decide

Anthony Mennillo, MIGA Manager – Claims & Legal Services at MIGA looks at situations when a patient requests a test or investigation at the recommendation of a third party, such as a naturopath.

As a General Practitioner, you see a patient, conduct an examination, order an investigation, make a diagnosis and prescribe medication. Sounds straightforward, but as we know there are areas of vulnerability where something goes wrong and a patient suffers an adverse outcome.

What if we add another layer of complexity; where you have no involvement in the assessment of the individual and you are asked to order an investigation or prescribe treatment not knowing much about the test and/or treatment?

A further layer of complexity can be introduced if the requesting party is not a health practitioner and the information comes second hand via your patient.

Adding layers of complexity equates to increasing medico-legal risk and at MIGA, we have received enquiries from practitioners concerned about their medico-legal exposure in this increasingly common scenario.

In one particular example posed to MIGA, a patient consulted their general practitioner asking him to run a series of investigations at the request of a naturopath they had recently seen. Until that time the general practitioner was not aware the patient had been seeing a naturopath. 

In another example a general practitioner who was no longer registered with the Medical Board of Australia intended to offer complimentary health services, such that they would continue to prescribe a variety of hormone treatments and ask other registered practitioners to order pathology tests and prescribe medication.

Competing considerations

It may be tempting to please your patient and order a test or prescribe medication in these circumstances.  Your patient probably believes the request is simple i.e. to order a test or secure a prescription for something that they have already agreed to with a third party.  However, it is not so simple.

The Medical Board’s “Good Medical Practice, A Code of Conduct for Doctors in Australia” requires every medical practitioner to consider the benefit and harm to their patient in all clinical management decisions.  That includes ordering tests and prescribing medications.  Furthermore, medical practitioners are required to give priority to investigating and treating patients on the basis of “clinical need” and effectiveness of the proposed investigations or treatment.

It is difficult to give due consideration to these requirements when you know little about the investigation and/or treatment.

There is a potential imbalance between the patient’s request for what may be an uncontroversial issue in their mind with the doctor’s own concerns about the merit of the treatment proposed by a non-health practitioner.

Recently, the Royal Australian College of General Practitioners (RACGP) issued a statement recommending their members refuse patient test requests from naturopathic practitioners.  While the RACGP recognised the harm, this may cause to the doctor/patient relationship, ordering inappropriate pathology or medical imaging carries significant medico-legal risk including litigation.

The RACGP’s position is consistent with the Medical Board’s Code of Conduct which requires general practitioners to only order medical imaging and pathology tests that are clinically indicated.

Achieving the right balance

The patient’s wellbeing must be the primary consideration in determining whether to order a particular test or prescribe treatment. If there is any doubt in the practitioner’s mind we recommend that caution be exercised.  It may be that a further discussion with the patient and/or the complimentary health provider may illicit further information that allows the practitioner to order a test or prescribe medication.  It is for the practitioner to decide whether to have those discussions or not.

The Medical Board also respects the right of practitioners not to provide treatment in certain circumstances.  The Code of Conduct requires practitioners to be aware of their right to “not provide or directly participate in treatments to which [they] consciously object, informing [their] patients and, if relevant colleagues of [their] objection and not using [the] objection to impede access to treatments that are legal.

Where it can go wrong

In the event of an adverse outcome it is not a defence to state that you simply ordered a test or prescribed medication at the request of a third party.  It is your responsibility to assess the clinical need and if you are not satisfied that it is in the patient’s best interests to have the test carried out or treatment prescribed then you should not do so. 

If a practitioner orders an investigation it is their legally recognised duty to take the necessary action based on the test result (including following up the patient if required).  If the practitioner does not know the reason for the test and is unable to properly interpret the result this may lead to an error, an adverse outcome for a patient and adverse consequences for you. 

Ordering a test which, in the practitioner’s mind, is not clinically relevant also has potential adverse implications if any Medicare benefits are paid for that test. 

The RACGP has a number of resources available to assist practitioners to communicate with their patients and complimentary alternative medicine therapists on this sensitive topic which can be found at www.racgp.org.au/support/policies/clinical-and-practice-management/appropriate-diagnostic-testing/.

Referrals to the public system – are you responsible for the delays?

The public health system provides an extremely valuable service. Unless a medical emergency exists, there are unfortunately well known delays associated with receiving timely care.

For patients without private health insurance, the public health service is often the only alternative where specialist care or treatment is required.

Despite a prompt referral to the public system, a patient might still have to wait months or even years to be seen prior to being treated for a particular medical condition.

Case study

A general practitioner consulted a 40-year-old patient in January 2013. The patient had recently returned from an overseas holiday with symptoms of nausea, vomiting, diarrhoea and cramping abdominal pain.

She attended hospital and was diagnosed with gastroenteritis and given opiate analgesia due to the severity of her pain. She subsequently attended her general practitioner at which time the vomiting and nausea had ceased but her frequent bowel actions persisted, although there was no blood or mucous in her stool.

The general practitioner referred her for a faecal occult blood test and also prescribed Buscopan. The general practitioner requested the patient return if her symptoms did not resolve for consideration of an upper GI ultrasound.

The patient returned two weeks later with persisting upper GI pain which was worse after eating.  The patient’s diarrhoea had persisted, and the patient recently noted blood in the stools.

The general practitioner referred the patient for an abdominal ultrasound and asked her to return for review for consideration of a colonoscopy.

When the patient returned a few days later she reported the GI symptoms had improved and the upper abdominal ultrasound and the blood tests were normal.

The general practitioner performed a PR examination and noted a small tender external haemorrhoid but no bleeding.

The patient returned six weeks later with recurrent PR bleeding the previous week at which time the general practitioner decided that a referral for a colonoscopy was required.

The patient did not have private health insurance and was referred to the local public hospital at which time she was placed on the waiting list for a semi-urgent colonoscopy.

The general practitioner was aware that the waiting list for urgent colonoscopies was 14 months.

While the patient was still on the waiting list she presented to the local emergency department and was diagnosed with obstructive bowel cancer.

Potential liability

This is one of a number of unfortunate situations where the waiting list has delayed the possible effective management of the patient which may have adversely affected the outcome.

At first blush the general practitioner’s management seems entirely appropriate. The patient’s symptoms were adequately investigated and followed up and a timely referral was made when the symptoms persisted. 

There are at least three possible arguments at this point:

  1. The general practitioner is not responsible for the delays in the public hospital system and their duty of care ended when the patient was referred for the colonoscopy.
  2. There may be some exposure for the general practitioner in not adequately assessing the urgency of the case or to ask the patient to return if symptoms worsened and they had not been seen at the public hospital.
  3. The general practitioner has an obligation to follow up the patient and their ongoing condition, form a view on urgency and discuss options with the patient.


As far as we are aware, there has been no court decision on this point which may provide some guidance on the legal responsibility for the general practitioner.

One of the factors a Court will consider in deciding on the extent of the duty of care is the reasonable foreseeability of harm occurring and the burden (financial or otherwise) on the defendant (the general practitioner in this case) to take steps to reduce the risk of harm

Risk management tips

In this case the general practitioner was aware of the long waiting time for a colonoscopy.

In our view the general practitioner’s duty of care would have been satisfied by:

  • Advising the patient of the likely waiting time;
  • Offering any alternatives available including private referral and likely costs; and
  • Asking the patient to monitor their symptoms and to return if symptoms worsen.


Insurance policies available through MIGA are issued by Medical Insurance Australia Pty Ltd.  MIGA has not taken into account your personal objectives or situation.  Before you make any decisions about our policies, please read our Product Disclosure Statement and Policy Wording and consider your own needs.  Call MIGA for a copy on 1800 777 156 or visit our website at www.miga.com.au.  The information contained in this document is of a general nature only and does not purport to take into account or be relevant to your personal circumstances. This information is not intended to be nor should it be relied upon as a legal or any other type of professional advice.

The Private Practice Magazine

This article featured in
our Spring 2017 Edition

General Practitioners Support

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