It comes down to whether affordability, or lack of it, is seen as a risk to a patient’s health.
GPs have a duty to mitigate foreseeable harms to their patients.
Whether that extends to telling patients how to access cheaper drugs – thereby avoiding the harm of no treatment due to financial disadvantage – remains a legally fuzzy area needing more investigation, says an ethics and medicines policy expert.
“There are several legal principles that suggest that physicians have a duty to advise patients of options for accessing more affordable medicines, including via personal importation,” writes Dr Narcyz Ghinea, a research fellow at Macquarie University, in Australian Health Review.
According to the Australian Healthcare Index, a significant number of Australians forgo filling prescriptions because of out-of-pocket costs. Although GPs have several ways of accessing cheaper unapproved medicines from abroad via the Special Access Scheme, this route can only be used for clinical, not financial reasons.
However, patients can import medications themselves via the Personal Importation Scheme, or indirectly via buyer clubs such as FixHepC Buyers Club, Cystic Fibrosis Buyers Club, or commercial online platforms like PharmacyChecker.
The question of whether doctors have a duty to inform patients about these routes to affordable care falls into a grey area where several legal principles imply an obligation, Dr Ghinea writes.
“Physicians have a duty to respond truthfully to patients’ questions,” he wrote. “If a patient discloses that they cannot afford treatment and asks for advice about how to access more affordable medicines, their physician may be obliged to divulge what they know about more affordable treatment options.
“If risks arising from failing to advise patients of effective and affordable medicines can be demonstrated to be similar to those arising from failing to inform patients of plainly superior treatment options – which represents a clear breach – a duty could be adduced.”
Physicians are also obliged to disclose options that offer “clear advantages”, Dr Ghinea wrote.
“This suggests that a duty to disclose the option of importing more affordable medicines may exist in cases where it represents a clearly better alternative (e.g. versus potentially no treatment at all).”
Physicians have a duty to “facilitate access to the means for achieving health goals”.
“Insofar as importing affordable medicines will help patients to achieve health goals that they cannot otherwise attain, a duty may exist for physicians to support, or at least disclose, this option,” wrote Dr Ghinea.
The legal challenges in this area include the interpretation of whether “affordability” is considered a risk.
The Cancer Council recently developed a standard for informed financial consent, which explicitly requires physicians to advise patients of “care options such as where the same or similar benefit can be provided at less cost”.
This and similar policies, according to Dr Ghinea, acknowledges out-of-pocket costs, particularly if unexpected, “have a significant impact on patients’ wellbeing (giving rise to the new concept ‘financial toxicity’), and that therefore disclosing cost information is critical to gaining valid consent”.
Dr Ghinea wrote that two critical questions need to be answered going forward: “To what extent are physicians required to learn about the relative costs of different medicines available, or different ways in which cheaper medicines can be accessed?; and, to what extent are physicians responsible for soliciting, and considering, non-clinical information when prescribing medicines (e.g. relating to a patient’s financial circumstances)?”
The upshot for GPs is that there is no legal precedent in Australian law that explores doctors’ duty to disclose more affordable treatment options to patients, whether via personal importation or other mechanisms.
“This is a significant lacuna that needs to be addressed,” Dr Ghinea concluded.
“The current legal framework has the potential to support cost-motivated personal importation and other economically motivated prescribing.”
