by Peter van Schaik
Medical Doctors have frequently claimed the right to enforce compulsory helmets on cyclists, to protect the public purse. For example in his review entitled “The Effectiveness of Bicycle Helmets: A Review” (1995), Dr. Michael Henderson says: “There remains a proportion of the riding population who are opposed to legislation requiring the use of helmets on grounds of principle. They simply cannot accept that society has the right to make them do something that protects only them.”
Henderson is completely wrong. He has nothing to back up his claim that societal interest prevails. Society has in fact consistently protected the rights of individuals to choose whether or not to accept a medical treatment. Wearing a helmet is really just another form of medical treatment, and in the form of legislation it is a medical treatment which has been administered by doctors onto their patients against their will.
Doctors tend to only see the end result of an accident, which they may reasonably feel a helmet would have prevented, from which they decide that all cyclists must wear helmets. Medical doctors and other medical staff are really just another minority group with extreme views. They have had an unreasonably large influence over the Government in the bicycle helmets issue. They have a lot to answer for! It could be said that if you can’t stand the sight of blood or human suffering, you shouldn’t become a doctor in the first place.
Compulsory helmets considered as a medical treatment
by Bill Curnow
The Royal Australasian College of Surgeons, Victorian Branch, was the prime mover towards compulsory helmet wearing. The Federal Government then took action to bring it about. Announcing this, then Prime Minister Mr Hawke said:
“I pay tribute in the development of this proposal to Sir Dennis Paterson, President of the International Society of Orthopaedics and Traumatology, whom I met earlier this year. As a result of his advocacy of the need for the Commonwealth to take the lead in this area, I asked Bob Brown and Neal Blewett to put together this package.”
Who’s who in Australia notes Sir Dennis’s prominent role in the Royal Australasian College of Surgeons.
In effect, then, surgeons, per medium of statute, are imposing upon cyclists a treatment intended to reduce head injury. This action runs counter to the common law governing medical treatment.
Fetal welfare and the law, a report of an inquiry commissioned by the Australian Medical Association, provides a useful summary of relevant common law concerning the rights of the patient versus those of the surgeon and the duty owed by the surgeon to the patient.
1. Rights of the patient
Courts have consistently upheld the right of the individual to decide how to protect his or her own body from injury or death, and have rejected claims that the medical profession has a right to impose treatment.
The report on fetal welfare says it is for the patient, not the doctor, to decide whether the treatment will be performed. In Canada, the Ontario Court of Appeal, in Malette and Shulman, awarded damages against a doctor who transfused blood into a patient who was unconscious as a result of a motor accident, but who carried a card saying that she would refuse blood transfusions. In delivering the court’s judgment, Justice Robins said at page 328, quote: ”
“A competent adult is generally entitled to reject a specific treatment, or all treatment, or to select an alternate form of treatment, even if the decision may entail risks as serious as death and may appear mistaken in the eyes of the medical profession or of the community. Regardless of the doctor’s opinion, it is the patient who has the final say on whether to undergo the treatment. … The doctrine of informed consent is plainly intended to ensure the freedom of individuals to make choices concerning their medical care. For this freedom to be meaningful, people must have the right to make choices that accord with their own values regardless of how unwise or foolish those choices may appear to others.”.
Justice Robins posed the question why Mrs Malette should be transfused against her will. Quoting him again, at page 333:
“The appellant’s answer, in essence, is that the card cannot be effective when the doctor is unable to provide the patient with the information she would need before making a decision to withhold consent in this specific emergency situation.”
The doctor’s emphasis on the need to take account of specific circumstances at the time contrasts strongly with a law that compels cyclists to wear helmets in all circumstances. Justice Robins continued:
“In the absence of an informed refusal, the appellant submits that Mrs Malette’s right to protection against unwanted infringements of her bodily integrity must give way to contervailing societal interests which limit a person’s right to refuse medical treatment. The appellant identifies two such interests …” – end of quotation. He went on to say that the first was the interest of the state in preserving life, but declared that, quote:
“The state’s interest in preserving life or health of a competent patient must generally give way to the patient’s stronger interest in directing the course of her own life.”
On page 334, Justice Robins added:
“Recognition of the right to reject medical treatment cannot be said to depreciate the interest of the state in life or in the sanctity of life. Individual free choice and self-determination are themselves fundamental constituents of life. To deny individuals freedom of choice with respect to their health care can only lessen, and not enhance, the value of life. This state interest cannot properly be invoked to prohibit Mrs Malette from choosing for herself whether or not to undergo blood transfusions.” At page 336 he said, “The right to determine what shall be done with one’s own body is a fundamental right in our society. The concepts inherent in this right are the bedrock upon which the principles of self determination and individual autonomy are based. Free individual choice in matters affecting this right should, in my opinion, be accorded very high priority.” – end of quotation.
In England, in Re T (Adult: Refusal of medical treatment), the House of Lords has made it plain that the right to refuse medical treatment extends even to the point where refusal will result in the likely or certain death of the patient. In this case, at pages 652 to 653, Lord Donaldson acknowledged the “absolute right to choose whether to consent to medical treatment, to refuse it or to choose one rather than another of the treatments being offered … notwithstanding that the reasons for making the choice are irrational, unknown or even non- existent.” At page 661, he said:
“This situation gives rise to a conflict between two interests, that of the patient and that of the society in which he lives. The patient’s interest consists of his right to self-determination – his right to live his own life how he wishes, even if it will damage his health or lead to his premature death. Society’s interest is in upholding the concept that all human life is sacred and that it should be preserved if at all possible. It is well established that in the ultimate the right of the individual is paramount.” – end of quotation.
In Australia, the same doctrine has been affirmed by superior courts. In F against R (1993) 33 SASR 189, the Supreme Court of South Australia considered a surgeon’s duty to inform the patient of the risk that an operation will not succeed in its aim. Chief Justice King remarked at pages 192/193, quote:
“The governing consideration is the right of every human being to make the decisions which affect his own life and welfare and to determine the risks which he is willing to undertake.” He also referred to, quote, “the paramount consideration that a person is entitled to make his own decisions about his life”, a passage which the High Court of Australia cited in Rogers and Whitaker (1992) 175 CLR 479, at page 487.
In summary, superior courts have upheld the right of the individual to decide how to protect his or her own body from injury or death and have rejected claims that the medical profession has a right to impose treatment. As the report on fetal welfare puts it, “Consent is the crucial concept”.
Against this background of common law, it would be reasonable to expect that governments and legislators would give careful consideration to the principles developed in the common law before abrogating them by statute. In fact, the reports of the introduction of and debate on the Traffic (Amendment) Bill 1992, Hansard 9 April 1992 pages 143 to 145 and Hansard 19 May 1992 pages 568 to 586, make no mention of its effect of overriding common law applicable to medical treatment. Similarly, there is no mention of it in documents received from the Department of Urban Services in response to a wide- ranging request of 4 October 1994 under the Freedom of Information Act 1989.
2. Duty of the surgeons
(a) The applicable law
The applicable law is summarised in the report on fetal welfare. It says on page 69, that, in broad terms the law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment. In the past, identification of the appropriate standard of skill and care has been greatly infuenced by the views of the profession. This test was known as the Bolam standard. It is derived from the direction given to the jury in Bolam v Friern Hospital Management Committee (1957) 2 All ER 118. It was explained in the following way by Lord Scarman, in Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital (1985) AC 871 at 881:
The Bolam principle may be formulated as a rule that a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopt a different practice. In short, the law imposes the duty of care; but the standard of care is a matter of medical judgment.
In Australia, in Rogers v Whitaker, Chief Justice Mason and Justices Brennan, Dawson, Toohey and McHugh of the High Court said at page 487, quote, “the Bolam principle has been discarded and the courts have adopted the principle 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 after giving weight to the paramount consideration that a person is entitled to make his own decisions about his life” – end of quotation.
The duty of care of the common law would require that those responsible for imposing upon cyclists the medical treatment of helmet wearing, surgeons in particular, should have certain knowledge of the efficacy of helmets in mitigating injury and should draw attention to any uncertainties or adverse effects.
(b) Evidence relevant to standard of care
(i) Evidence of surgeons
There is evidence that the care taken by those responsible for imposing the medical treatment of helmet wearing falls short of an appropriate standard.
The Hansard record of the evidence which the Royal Australasian College of Surgeons, per Drs Dooley and Trinca, submitted to the House of Representatives Standing Committee on Road Safety in the course of its inquiry on motorcycle and bicycle safety in 1978, shows that they had no evidence of efficacy, merely of numbers of cyclists killed and injured.
Evidence given by Dr Trinca shows that he was negligent about establishing the efficacy of helmet wearing with certainty before taking action towards it. He said, “If we could perhaps worry a little less about and take a little less time in proving what is precisely right according to all standards and get something that protects and get it agreed to by that particular group, at least we would be getting somewhere. I have a feeling that it is in much of our research work that a lot of delay happens. As doctors we are impatient. We cannot wait for 2 or 3 years’ evaluation.”
(ii) Evidence adduced by parliamentary committees
Following the impetus of the surgeons, public authorities took up the task of imposing upon cyclists the medical treatment of helmet wearing, starting with recommendations by parliamentary committees.
Recommendations by parliamentary committees in New South Wales in 1988 and Victoria in 1986 were influential in forming the Federal Government’s policy of compulsory helmets. The House of Representatives Standing Committee on Transport Safety also recommended compulsory helmets in its 1985 report. The evidence of efficacy of helmets that these committees adduced is examined in a paper by Bill Curnow entitled “Review of evidence on the efficacy of helmets”. The paper concludes that the Federal Government’s policy on compulsory helmets was decided without sufficient knowledge of the efficacy of helmets in reducing injury to cyclists.
(iii) Evidence used by Commonwealth and ACT Governments
The ACT introduced the helmets law in response to a financial inducement from the Commonwealth Government. An FOI request made by CRAG to the Department of Urban Services on 6 January 1992 requested, among other things, the rationale which the Commonwealth provided to ACT authorities. We expected that it would at least describe the social ill requiring a legislative remedy, provide evidence that helmets are efficaceous, and discuss possible adverse effects of helmet wearing. Concerning the matter of a social ill, one would expect evidence of a sharp increase in casualties to cyclists, but deaths to cyclists had actually been declining.
The response received shows that neither the rationale nor the written advice to the then Minister included any of these matters. This shows that both the Commonwealth and the ACT authorities exercised a less than acceptable standard of care.
Further, in our FOI request of 4 October 1994 to the Department of Urban Services we sought documents concerning any consultations with, or requests for advice from health authorities and any advice received. No such documents were provided in the Department’s response of 2 February 1995. Again, the ACT authorities exercised a less than acceptable standard of care.
Other evidence of ACT authorities’ lack of care is evident in the matter of exemptions for medical reasons. In a letter of 4 May 1993, the then Minister for Urban Services said that he did not intend allowing exemptions under any medical circumstances. He said that this view had been supported by the Australian Medical Association and the National Road Trauma Advisory Council – NRTAC. Through FOI, CRAG requested from the Department documents showing the terms in which the organisations which had advised their support for compulsory helmets had expressed it. The letter from NTRAC merely says that it supports the advice of the Royal Australasian College of Surgeons, but the Department did not obtain that advice. The Minister’s claim of support from the AMA is false, as is shown in another document. Again, ACT authorities exercised a less than acceptable standard of care.
The ACT Government’s 1992 information bulletin, “Compulsory wearing of helmets for bicyclists in the ACT”, which is currently being promulgated through official outlets, says helmets are extremely effective in reducing injuries to the head. Although the Minister for Urban Services was advised by letter of 6 April 1995 of the NHMRC’s warning of possible increase in brain injury from wearing a helmet, the bulletin makes no mention of it – a less than acceptable standard of care.
by Peter van Schaik
Henderson says: “When protection can be proven by good science- -as is the case for helmets and seat belts–then even those who hold most firmly to civil libertarian principles must concede that to compel protection for a few does bring benefit to many”.
Henderson makes these claims of helmets being proven by good science, but doctors pushed for compulsory helmets before any scientific evidence even existed. As for those studies that have since appeared in the world literature, the tag “good science” is a very questionable one. Nevertheless, Why are these same principles not extended to other areas? Why is it just cyclists who must wear helmets?
Pedestrians suffer many more head injuries than cyclists, and most of these are resultant from a collision with a motor vehicle, much the same as the accidents Henderson describes: “The predominant collision was between a cyclist and the front of a car” (Otte, 1989). According to the UK Govt yearly digest of statistics published by HMSO, called “Social Trends”, the deaths per billion kilometers travelled are: bicyclists (53), pedestrians (71). Using data derived from fatality rates per million hours (Vicroads, 1990), percentages of deaths from head injury (FORS, 1992), and ratio of hospital admission for head injury (HI) to death from HI (Queensland Health Department Statistics), it is possible to estimate the risks of serious HI and death by HI per million hours of activity. These are: cyclists (2.39), pedestrians (2.34), motor vehicle occupants (1.77), motor cyclists (20.9). Pedestrians are at about the same risk as cyclists.
Motor vehicle occupants are at a slightly lower risk, but they account for 17 times as many head injuries as cyclists. The mechanics of their head injuries are not necessarily the same, but a great many result from their head striking the door frame (despite wearing a seatbelt) – surely a helmet would help there. At least one researcher has stated that bicycle helmets would be suitable, and a standard for car helmets is now available.
Bicycle helmets first became popular amongst racing cyclists, then spread to other cyclists. In the form of helmet laws, the standards of the professional and ‘more serious’ cyclists have been forced upon the general cycling public. Professional motor racing drivers wear helmets, so by the same reasoning, if it is good enough for them it’s good enough for the general motoring population, the same as with cycle helmets.
Given his great concern about head injury, I could fully expect Dr. Henderson to be wearing a helmet if I met him on the street, or saw him driving a car.
And what about people who use stairs? They account for a great many head injuries of a preventable nature, and their risk per time factor or risk per kilometre must be absolutely overwhelming!
There are many other areas where protection has been proven by “good science”. Here in Australia, many people die from skin cancer each year. In NSW in 1992, skin cancer claimed the lives of 226 men and 141 women, but 1990 (the last pre-helmet law year) saw only 20 cyclists killed. Why not compulsory shirts and wide brimmed hats whilst outdoors? Acceptance is already high so surely this legislation would be easy to implement. Then there are those other activities where compulsory abstenance would certainly be beneficial to the societal purse: smoking, drinking, overeating, growing old. Why stop at bicycle helmets?
Although compulsory bicycle helmets may not be of much concern to most people at this time, the real concern should be: what will the ‘Safety Nazis’ be legislating for in 10 or 20 years time?
Almost everything we do has some risk attached and it’s a question of how we estimate the situation. For many people, for whatever reason, it is just not worth the inconvenience of wearing a helmet, as evidenced by the huge declines in cycling recorded after introduction of the law. Cycling without a helmet is really little different from other potentially harmful activities such as smoking and drinking. The difference is that cycling in itself is healthy, the chance of serious head injury is actually very small, whereas the loss in health and subsequent cost to the health system from those other activities (or from not exercising and becoming sedentary) is virtually guaranteed. The main effect of the helmet law has been to discourage a healthy activity.
Bicycle helmet laws remove freedom of choice. The aim may well be to preserve life but the secondary effect is to restrict freedom. In supporting the helmet laws, doctors often talk about the loss of freedom and quality of life in head injury victims as if they own the book on the subject. But without personal freedom of choice the quality of life is diminished. It is wrong for doctors to have the final say over what form an individual’s freedom should take. It would seem that Medicare has been a sinister tool for removing individual freedom, since it has made it possible for doctors to make the claim of “it being for the greater good” in protecting the investments of others, thereby bypassing the long-standing principles of common law and abrogating individual freedom.