Home Medical Malpractice What Is Informed Consent And Why Is It Important For Patients? – Professional Negligence

What Is Informed Consent And Why Is It Important For Patients? – Professional Negligence

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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

1 [1980] 2 S.C.R. 192

2 [1980] 2 S.C.R. 880

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.



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