The Duty of Medical Practitioners and CAM/TCM Practitioners to Inform Competent Adult Patients about Alternatives

419 Pages·2013·3.88 MB·English

by  Xiju Zhao (auth.)

The Duty of Medical Practitioners and CAM/TCM
Practitioners to Inform Competent Adult Patients
about Alternatives

Xiju Zhao
The Duty of Medical
Practitioners and CAM/TCM
Practitioners to Inform
Competent Adult Patients
about Alternatives
Xiju Zhao
Department of Law
College of Social Science and Humanities
Shandong University of Traditional Chinese Medicine
Jinan, P.R. China
ISBN 978-3-642-31646-3 ISBN 978-3-642-31647-0 (eBook)
DOI 10.1007/978-3-642-31647-0
Springer Heidelberg New York Dordrecht London
Library of Congress Control Number: 2012948638
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To my mom and my sister

Acknowledgments
This book is based on a thesis that I wrote for the degree of Doctor of Philosophy at
the University of Otago, New Zealand. I would like to begin by thanking Prof. Mark
Henaghan and Prof. Peter Skegg who supervised my Ph.D. Mark has always been
available to provide guidance, encouragement and endless support. Peter gave high
priority to reading my writings and devoted so much time in his busy periods, even
sacri fi ced his weekends and vacations, to read my thesis draft, word by word, and
make detailed comments and suggestions about it, including presentation. Those
comments are very helpful and constructive. They are greatly appreciated.
I also bene fi ted from discussing the issues with Prof. Colin Gavaghan, Prof. John
Dawson and Prof. Nicola Peart. The input they gave me is valuable. Despite many
other commitments, John agreed to proofread Chaps. 1 and 11 of my thesis. His
insightful comments and focus on detail are very much appreciated.
My thanks also go to three anonymous examiners of my Ph.D. thesis. Now I have
the honour to know who they are. They are Prof. Erwin Deutsch (Germany),
Prof. J. A. Devereux (Australia), and Prof. Grant Gillett (New Zealand). Their
comments are very constructive and helpful for my amending the thesis. I appreciate
very much their time in reading my thesis and writing the reports on it.
Furthermore, I want to extend my thanks to anyone who has helped me, in one
way or another, during my Ph.D. journey. They include many other staff members
at the Law Faculty and the Law Library of the University of Otago.
Finally, I would like to dedicate my thesis to my mother, my sister, my wife and
my son. In 2009, both my mother and sister were diagnosed with lung cancer.
It shocked me. They passed away during my graduation period. I am sorry that I did
not spend much of my time with them. I am also sorry that I did not give much of
my time to my son. My wife, as a working mother, devoted so much of her time to
take care of and look after our son, while I was living many thousands of miles away
from them, working on this thesis. I thank them sincerely for their understanding
and tolerance.
I am responsible for the arguments presented in this thesis, and for any errors.
vii

Contents
1 Introduction ............................................................................................. 1
2 Information Disclosure: A Distinctive Pro fi le ...................................... 9
2.1 Introduction ...................................................................................... 9
2.2 The Commonwealth Approach ........................................................ 12
2.3 The USA Approach .......................................................................... 20
2.4 The Materiality Test ......................................................................... 21
2.5 Making Health Care Divisible ......................................................... 30
2.5.1 The Doctor-Oriented Standard v.
The Patient-Oriented Standard ............................................. 33
2.5.2 Medical Judgment v. Layperson Knowledge ....................... 34
2.5.3 Information v. Materiality .................................................... 36
2.6 Proposal ............................................................................................ 40
References ................................................................................................. 41
3 Disclosure of Alternatives: In a Wide Context ..................................... 43
3.1 Introduction ...................................................................................... 43
3.2 From Disclosure of Risks to Disclosure of Alternatives .................. 44
3.3 Disclosure of Alternatives: Conventional Wisdom .......................... 50
3.4 General Distinction: Selection, Recommendation,
Performance v. Disclosure ............................................................... 58
3.5 Further Distinction: Selection – Recommendation –
Performance – Disclosure ................................................................ 59
3.5.1 Performance ......................................................................... 59
3.5.2 Selection ............................................................................... 61
3.5.3 Recommendation ................................................................. 67
3.5.4 Disclosure and Doctors’ Preferences ................................... 76
3.6 Conclusion: A New Model .............................................................. 78
References ................................................................................................. 79
ix