C. The Doctrine of Informed Consent to Medical Treatment

Author:Philip H. Osborne
Profession:Faculty of Law. The University of Manitoba

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In the latter part of the twentieth century, the nature of the relationship of physician and patient evolved from an authoritarian or paternalistic model to a more egalitarian and participatory one. The authoritarian model is characterized by a physician who, while acting in what she perceives to be the best interests of her patient, largely dictates the appropriate treatment to an uninformed and acquiescent patient.21The

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participatory model treats the relationship between the physician and the patient as a partnership in which the patient plays an active role in understanding and controlling the course of her medical treatment. It promotes the patient’s right of self-determination. Current medical practice is probably more subtle than either of these models, but the trend towards a participatory model is clear and it has been fostered and promoted by the courts by the doctrine of informed consent to medical treatment.

The key to a more balanced physician-patient relationship is to increase the information that the patient has about his illness, the alternative treatments that are available, and the risks and benefits of those options. A patient’s right to self-determination cannot be exercised wisely unless he has sufficient information to determine what is in his own interests. The courts have, therefore, recognized that physicians not only have an obligation to diagnose and treat with due care, but they also have an obligation to inform their patients of the nature of their illness and the nature, risks, and benefits of the proposed treatment.

The landmark decision is Reibl v. Hughes.22In that case, the plaintiff was not told that surgery designed to unblock his carotid artery carried a significant risk of a stroke, a risk that manifested itself and left him partially paralysed. The Supreme Court imposed liability on the defendant surgeon for his failure to secure the plaintiff’s informed consent. Liability was based on the tort of negligence. Consequently, the extent of the physician’s obligation is controlled by an application of principles relating to the duty of care, the standard of care, and causation.23

1) The Duty of Care

A physician is under a duty of care both to answer the patient’s questions and to volunteer information about the patient’s health and treatment options.24The patient’s questions must be answered in a full, frank, and honest manner. There must be no evasion or equivocation. Information must be volunteered in respect of the nature and gravity of the patient’s

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illness, the risks and benefits of the proposed treatment, the risks and benefits of any alternative treatment, the consequences of inaction, any mishaps and accidents occurring in the course of treatment, and the results of the treatment. The extent and detail of the information to be provided is determined on a case-by-case basis by an application of the standard of care.

2) The Standard of Care

The standard of care adopted by the Supreme Court in Reibl is the full disclosure standard. This may be contrasted with the professional standard that measures the defendant’s disclosure of information against current professional custom and practice. The professional standard, which is the conventional way to judge the conduct of a physician, was rejected in Reibl on the grounds that it was controlled largely by the medical establishment and it might not protect sufficiently the patient’s right to be informed. It should be noted, however, that the term full disclosure is something of a misnomer. It does not require the disclosure of every known risk of the proposed treatment. Sufficient information must be given to allow a reasonable person in the particular circumstances of the patient to make a decision in her best interests. All material risks must be disclosed. A material risk is one to which a reasonable person in the circumstances of the patient would attach some significance in determining the course of her health care. They include low risks of serious consequences and high risks of minor consequences. Special and unusual risks that are not common, ordinary, or everyday occurrences but do occur occasionally must also be disclosed. The courts have not been reluctant to label risks as material. Even extremely low risks of death or paralysis must be disclosed, but remote risks of minor consequences and risks that are common knowledge such as bleeding, scarring, and pain after surgery do not normally need to be discussed.

The standard of disclosure is tailored to the particular circumstances of the patient. The physician must take account of what she knows about the patient and her lifestyle. Account must also be taken of any information supplied by family members. There continues to be some uncertainty over the degree to which a physician must actively inquire about the patient’s personal circumstances. This may vary according to the nature of the physician-patient relationship. A long-time family physician or one who has been involved in the treatment of a chronic illness may be expected to have more extensive knowledge than a consultant, a physician working in a walk-in clinic, or a physician in an emergency department of a hospital.

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The physician must take reasonable steps to assure himself that the...

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