Informed Consent: Reasonableness, Risk, and Disclosure
| Author | Erin L. Nelson |
| Pages | 145-167 |
145
Informed Consent: Reasonableness, Risk,
and Disclosure*
erin l. nelson†
A. INTRODUCTION: INFORMED CONSENT AT THE SUPREME
COURT OF CANADA
Twenty-ve years ago, victory was proclaimed for patient autonomy when the
Supreme Court, in Reibl v. Hughes, articulated a patient-centred standard of
risk disclosure in the context of informed consent claims. What the reas onable
physician would tell her patient about the treatment is no longer the standard
* While I prefer the ph rase “informed choice” to “ informed consent,” I use “i nformed
consent” here, given its accepted us e in both academic and judicia l writing.
† I would like to thank Tim Caul eld, Gerald Robertson , Jane Steblecki, and Moin Yahya
for their comments on an earl ier dra of this chapter. I would al so like to thank Tracey
Bailey, Russ Brown, t he participants at the National Hea lth Law Conference, and those
at a faculty semi nar held at the University of Alberta , Faculty of Law, April , for
their helpful fee dback on the ideas presented here.
Reibl v. Hughes (), D.L.R. (d) (S.C.C.) [Reibl].
See, for example, Philip H. Osborne , “Causation and the Emerging Cana dian Doctrine
of Informed Consent to Medica l Treatment” () C.C.L.T. at (noting that
the doctrine of inf ormed consent “represents a change in the doctor-patient relationship
from an ‘authoritarian’ or ‘paterna listic’ model … to a ‘participatory’ mo del”) [“Causa-
tion”]; Gerald B. Robertson, “I nformed Consent Ten Years Later: e Impact of Reibl v.
Hughes” () Can. Ba r Rev. at – (referring to the “symbolic importance”
of Reibl v. Hughes) [“Informed Consent Ten Years Later”]; Bernard Dickens, “I nformed
Consent” in Jocelyn Downie , Timothy Cauleld, & Col leen Flood, eds., Canadian
Health Law and Policy, d ed . (Markham: Butterwor ths, ) ; Ellen I. Picard &
Gerald B. Robertson, Legal Liability of Doctors and Hospitals i n Canada, d ed. (To-
ronto: Carswell, ) at –; Mitchell McI nnes, “Causation in Tort Law: A Decade
in the Supreme Court of Canada” () Sask. L . Rev. at .
146 Health Law at the Supreme Court of Canada
to which physicians are held. Instead, physicians must inform their patients of
risks that the “reasonable person in the position of the patient” would want to
know before making a decision to proceed with or forgo medical treatment.
Reibl thus marked a signicant shi in the legal approach to risk disclosure,
from a focus on risks perceived as important by physicians to those perceived as
important by patients.
Not long aer the decision in Reibl, concerns began to be voiced by both
lawyers and physicians. Physicians worried that the new standard of disclosure
would lead to ever-expanding lists of information or risks to be disclosed, and
that this, in turn , would lead to an ever-increasing likelihood of liabilit y. Law-
yers, by contrast, began to notice that in spite of the patient-centred approach
to di sclo sure, patie nts ra rely s uccee ded in info rmed c onsent case s. In part icul ar,
this trend was noted by Gerald Robertson in the empirical work he undertook
ten years aer the decision in Reibl.
e reason most oen cited for this lack of success is the objective (or, as
it is sometimes called, the modied objective) test for causation. e plainti
can only s ucceed if he can succe ssfully prove that the reasonable person in the
position of the patient would have declined the procedure or treatment, had
he been informed of the risk(s) the physician failed to mention. e objective
Reibl,supra note at .
See, for example, B ernard Dickens, “e Eec ts of Legal Liabil ity on Physicians’ Service s”
() U.T.L.J. at , where he notes that General Counci l to the CMPA explained
his views thus: “[n]o legal event in the la st y years has so d isturbed the practice of med i-
cine as did the decision of t he Supreme Court of Canada in Reibl v. Hughe s.” Altho ugh
the prediction of an ever-lengthen ing list of facts to be di sclosed was largely accu rate
(and although the frequenc y of malpractice claims i ncreased around the time that Reibl
was decided), it is not the case that physici ans are oen held liable. As Gera ld Robertson
notes, between and , “the frequency and severity of ma lpractice claims have risen
dramatical ly. However, whatever may be the reasons for t his phenomenon, it is not due to
any fundamenta l change in legal doc trine.” See Gerald B. Robe rtson, “Doctrina l Develop-
ments in Canadian He alth Care Liabilit y, –” in Liability and Compensation in
Health Care: A Report to the Confe rence of Deputy Ministers of Heal th of the Federal/Proin-
cial/Territorial Rev iew on Liability and Compen sation Issues in Health Care; Append ix B:
Research Papers —Scope a nd Trends in Health Care Liability in Canad a, vol. (J. Robert S .
Prichard, Chai r) (Toronto: University of Toronto Press, ) at . In the last decade, there
has been a “dis cernible downward trend” in the number of law suits against physicians .
See Canadian Me dical Protective Association , “Medical Liabilit y— A Physician Primer”
(March ) at , onli ne: www.cmpa-acpm.ca /cmpapd/cmpa_docs/english/content/
issues/common/pdf/com_medica l_liabi lity_ a_physi cian_pr imer-e.pdf.
Robertson, “Informed Con sent Ten Years Later,” supra note . See also Gerald B. Rober t-
son, “Informed Consent i n Canada: An Empirica l Study” () Osgoode Hall L.J. .
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