Informed consent means that patients are entitled to understand treatment options, risks and benefits so that they can make informed and voluntary decisions. Canadian law firmly recognizes a person's right to decide whether or not they want to undergo medical treatment, with few exceptions. In some emergency situations, a medical practitioner who does not have consent to treat the patient will make a decision to provide medical treatment based on their good faith understanding of what the individual patient would want or what a patient would reasonably decide under similar circumstances. If treatment is necessary to save a patient's life, even without consent, a physician will provide necessary care. In the absence of an emergency situation, our medical-legal system prioritizes a person's right to decide what care they want over what a physician may believe to be the best course of action.
When a patient discovers that a medical provider failed to provide the information they needed to give informed consent, they may feel as though their bodily autonomy has been violated. Perhaps the medical practitioner acted in a way that directly caused the patient serious harm without the patient fully understanding the risk of such action. Perhaps information that would have prompted the patient to seek alternative treatment was not provided. Or, a patient's personal circumstances render some risks unacceptable to the particular individual. If a patient is not properly informed about the risks of a medical treatment or alternative treatments available, and the patient subsequently suffers harm, the medical provider may be liable for medical malpractice.
If you or a loved one suffered harm and did not provide informed consent, Gluckstein Personal Injury Lawyers can help you understand your rights and may be able to assist with a claim for compensation for the damages you experienced.
When is consent required?
Obtaining consent relates to the principle of bodily autonomy and it should be obtained for all kinds of medical, surgical or investigative treatment. Sometimes patient consent is implied. For example, if a doctor asks questions about a patient's medical history, the patient would have implied consent by answering such questions. If a nurse took out a blood pressure cuff and the patient presented their arm so it could be fitted for a blood pressure test, there would be implied consent.
Any treatment that causes more than a little pain or carries a significant risk requires physicians to obtain consent that is expressed rather than implied. This could be in the form of a note made in the patient's records after receiving oral consent, or obtaining a signed written consent which is placed in the patient chart.
Informed consent in case law.
In Canada, liability for lack of informed consent can be pursued through the torts of battery or negligence. Battery is considered to be intentional unpermitted touching of another person. The contact itself is deemed to be the harm, without the need to show bodily injury, as the tort is against a person's autonomy and independence. Most civil claims involving lack of informed consent deal with negligence.
In 1980 the Supreme Court of Canada released two landmark decisions on informed Consent: Hopp v. Lepp[1] and Reibl v. Hughes[2]. The Reibl decision, building on Hopp, introduced the doctrine of informed consent into Canadian Law. As a result of Reibl, informed consent became not what a reasonable physician would disclose, but what a reasonable patient would want to know. It also restricted the tort of battery to cases where surgery or treatment was performed without any consent or where it went beyond the consent that was given. One of the most important elements introduced by Reibl relates to causation: what would likely have happened if a reasonable patient had been properly informed. As a result, even if a physician fails to obtain informed consent, he or she will only be held liable if it can be established that, had informed consent been sought, a reasonable person would have decided not to have the treatment.
Statutory Consent.
In addition to common law precedents discussed above, Ontario health care providers must abide by The Health Care Consent Act, 1996. Health practitioners must obtain written or oral consent to administer treatment unless the patient or their substitute decision maker has provided consent. Depending on the circumstances, consent may be expressed or implied. To be considered valid, the consent must:
- relate to the treatment.
- be informed.
- be given voluntarily
- not be obtained through misrepresentation or fraud.
According to both common law and the Act, informed consent requires disclosure of matters that a reasonable person in the same circumstances would need in order to make a decision about the treatment. This information includes:
- the nature of the treatment.
- the benefits of the treatment.
- the material risks and side effects of the treatment.
- alternative courses of action.
- the probable consequences of not receiving the treatment.
Provided there is no significant change to these circumstances, a health practitioner is entitled to presume that consent to treatment includes consent to reasonable variations or changes in the treatment provided. A person may also be considered to have given consent for future treatments not yet proposed to the patient provided they are part of the plan of treatment and tied to the patient's current condition or future problems that the patient's condition makes likely. A patient or their substitute decision maker may withdraw consent to treatment or a plan of treatment at any time providing they are competent to do so.
When consent is absent or uninformed?
If a medical practitioner fails to obtain consent, or the consent was given when a patient did not have enough information to make an informed decision, the practitioner may be liable for harm done to the patient. For example, if a physician recommended surgical treatment without explaining both the extent of the risk or the availability of a conservative treatment option (e.g. medication), the patient could pursue a medical malpractice claim if they suffered significant harm as a result of the surgery. Importantly, within such litigation it would need to be established that a reasonable person would have elected not to undergo the surgery. It is not enough for the patient in hindsight to say they would have preferred a more conservative treatment option.
Cases where informed consent is an issue often require a judge and/or jury to determine which party to an action has a better evidentiary position or credibility. A patient may have a specific memory of not being told something important about a treatment, while the practitioner may rely on a description of their standard, invariable practice or an entry in the records that may note general risks were discussed without specific details of which risks.
Courts have accepted evidence of a physician's standard procedure for obtaining consent as reliable evidence of what was discussed. Moreover, since most reasonable patients generally accept the advice of medical providers, it can be difficult to argue that a patient would have opted against this advice unless there are specific fact-driven circumstances which would make such a decision probable.
As with any alleged medical malpractice, every situation is fact specific and requires the opinion of an experienced lawyer to determine if there may be a viable case.
Help when you're hurt.
Gluckstein Personal Injury Lawyers have been helping people like you and your loved ones for decades. As one of the country's top ranked personal injury firms, our knowledgeable, experienced, and skilled personal injury lawyers have built a sterling reputation among our peers and clients for getting results and providing compassionate, full-circle care.
We are more than fierce advocates for our clients at court. We are people who care about you as we would our own family members. Our supportive client liaisons - some of whom have gone through their own personal injury journeys - are available to answer questions you may have throughout the process, to connect you to helpful resources, and to simply check in to see how you are doing.
When a medical practitioner has provided treatment without obtaining your informed consent and you've been hurt as a result, you should know you're not alone.
Footnotes
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
