What does the right to informed consent mean?
It is a patient’s right of choice to decide what is done to their body. Informed consent is a patient’s right to be fully advised on the implications of a medical procedure they are set to undergo. In Ontario, this applies to anyone who has the capacity to understand the relevant information and consequences of undergoing a procedure.
Prior to 1980, doctors simply needed to inform their patients of information they, the doctors, felt necessary to disclose. However, this changed after the 1980 Supreme Court of Canada decisions, Hopp v Lepp,  2 S.C.R. 192 and Reibl v Hughes,  2 SCR 880.
The legal evolution of informed consent
The concept of “informed consent” was first articulated by the Supreme Court in Hopp v Lepp. The Court affirmed that there is a duty upon health practitioners to properly inform their patients during the process of obtaining consent: this is referred to as the Duty to Disclose. Chief Justice Laskin, as he then was, listed the elements of informed consent as follows:
[A physician] should answer any specific questions posed by the patient as to the risks involved and should, without being questioned, disclose to him the nature of the proposed operation, its gravity, any material risks and any special or unusual risks attendant upon the performance of the operation.
The Supreme Court expanded on the Duty to Disclose in Reibl v Hughes. In Reibl v Hughes, the plaintiff patient had consented to having surgery done to remove an occlusion in one of his carotid arteries. The surgery was performed competently, however resulted in the plaintiff suffering a massive stroke, causing paralysis to the right side of his body. The plaintiff argued that had he been properly informed of the risks of stroke and paralysis involved in the surgery, he would have elected to forgo the surgery until his lifetime retirement pension had vested 18 months later.
The Reibl v Hughes decision established the modern standard for informed consent. Namely, that health practitioners must disclose all material risks of a procedure to the patient. Material risks include risks that, from the patient’s perspective, would be important to know about when consenting to a procedure. In Reibl v Hughes, the Court found in favour of the plaintiff by analyzing what a “reasonable patient” would do if fully informed of the material risks – would they have agreed to or refused the surgery? In this case, with the plaintiff’s pension only 18 months away, the Court found that a reasonable patient in the plaintiff’s position would have refused the surgery until after the 18 months had passed.
Codification of informed consent
Some provinces have enacted legislation that codifies the Duty to Disclose. In Ontario, the applicable legislation is the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A (“HCCA”). Under section 11 of the HCCA, the elements of medical consent are enumerated as follows:
- The consent must relate to the treatment;
- The consent must be informed;
- The consent must be given voluntarily; and
- The consent must not be obtained through misrepresentation or fraud.
Under the HCCA, informed consent is obtained only after the patient has received all of the necessary information about a procedure (see below) and has had their questions answered.
What does this mean for me, as a patient?
This means that a health practitioner must inform you of the following:
- The nature of the procedure;
- The material risks, benefits, and side effects involved in undergoing the procedure;
- The likely consequences of foregoing the procedure;
- Answers to any questions you may have about the above; and
- Alternative modes of treatment that you might wish to explore.
Material or Immaterial?
What constitutes as “material risks” is not black and white. Encouragingly, the courts have taken a fairly inclusive approach. According to the Supreme Court, material risks include remote risks that the health practitioner may not think the patient needs to know, but are so severe that a reasonable patient would wish to consider them (such as the risk of death or paralysis, for example).
The health practitioner is not required to disclose immaterial risks, however. These include risks that are uncommon and non-severe. Furthermore, the health practitioner is only required to discuss the risks, benefits, and alternatives surrounding the procedure that they are performing. This is most often applicable to situations where a patient is receiving different forms of care or is being medically investigated by multiple physicians.
As such, it is always in your best interests to ask several questions of the health practitioner and disclose any concerns you might have. A patient’s disclosure of special circumstances might warrant a health practitioner’s disclosure of an uncommon, non-severe risk that might otherwise have been considered immaterial.
Right to Withdraw Consent
As a patient, you have the right to withdraw your consent to a procedure at any time – even as the procedure is taking place. And, as long as stopping the procedure would not pose a significant risk to your health or life, the health practitioner must discontinue the procedure once your consent has been withdrawn.
Is the doctor required to ensure I understand all of the information presented?
For the most part, no. While the Supreme Court in Ciarlariello v Schacter,  2 SCR 119 seemed in favour of such a requirement, many see it as onerous and impractical to expect a health practitioner to somehow ensure a patient’s understanding of all the risks inherent in a procedure. Rather, a health practitioner is expected to take reasonable steps to ensure their patient’s understanding. What “reasonable steps” entails will depend on the particular circumstances of the case.
How is informed consent analyzed in a medical malpractice case?
Failure to obtain informed consent is pled as a form of negligence in medical malpractice litigation. However, a breach of the Duty to Disclose is not enough to prove a physician’s negligence. Negligence requires causation. As such, in addition to proving the omission of informed consent, a plaintiff must establish that, had they been properly informed, they would have elected to forgo the procedure. And, but for the procedure, the injury would not have occurred.
Courts use a modified objective test, as articulated in Reibl v Hughes. The modified objective test considers what the reasonable patient would have wanted to know about the procedure, and what they would have done once properly informed.
Why is it important for an informed consent discussion to be documented?
Ideally for the defendant physician, a discussion to obtain informed consent has been thoroughly documented. However, this is often not the case.
Ultimately, whether a conversation to obtain informed consent has taken place will come down to credibility – that is, which party the court or jury is inclined to believe. Doctors are generally viewed by the public to be credible witnesses. Thus, a physician’s vaguely-written chart entries referencing an informed consent discussion may be enough for a court to infer a patient’s informed consent – provided the defendant physician can establish that it is part of their regular practice to have a fulsome discussion with the patient.
Alternatively, a physician might opt to use an electronic form of documentation that has an auto-populated template. This is of course leaves open the question of whether a detailed conversation has in fact taken place.
Can a medical procedure be performed without consent?
There are limited exceptions to the requirement of informed consent. Emergency procedures are one such exception. The law implies full consent for life-saving or function-preserving treatment, except where a patient had made expressly clear (perhaps at a prior time, if the patient is currently incapacitated) that they refuse the applicable treatment.
Another exception is for additional or alternative procedures during the course of a procedure. For example, a surgeon in the middle of performing a surgery encountering an unexpected, life-threatening complication. In a situation such as this, the surgeon may perform the additional procedure without informed consent if the failure to take additional steps would render the original procedure ineffective or endanger the health or life of the patient.
Patients place an immeasurable amount of trust in their healthcare providers. Embedded in that trust is that healthcare providers will provide their patients with the information they need to make the best decisions possible for their health and wellbeing. Staying informed of what information you have a right to receive is a first step in ensuring that you remain an active participant in all of your health care decisions.
 This includes: British Columbia, Manitoba, New Brunswick, Ontario, Prince Edward Island, Quebec, and the territory of Yukon.
 Hopp v Lepp,  2 S.C.R. 192 at p 208; Reibl v Hughes,  2 SCR 880 at p 882.
 Ciarlariello v Schacter,  2 SCR 119 at p 140.
This blog was written by Samantha Carlos Panaro, Summer Student 2022, Bogoroch & Associates LLP.
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