Informed Consent

Introduction 

Over the past several decades, Canadian courts have rejected a paternalistic model of health care and have instead adopted a patient-centered approach. Courts have rejected the suggestion that the doctor knows best, and that the patient is required to follow the advice and direction of his or her doctor. Courts have instead placed the power to make decisions in the hands of the patient.
 
The role of the physician in the patient-centered model is to advise the patient of the various options for treatment, and the risks and benefits of each. By doing so, the physician provides the patient with the information necessary to make an informed decision. This process of informing the patient of the various options for treatment is referred to as obtaining “informed consent” and failing to do so appropriately can result in liability for a physician.
 
Under Canadian law, doctors have two separate and distinct duties to patients: 

• To provide competent medical treatment in accordance with the standard of care; and 
• To obtain informed consent from patients prior to administering treatment. 

If a doctor fails to satisfy either of the above-noted duties, he or she may be held liable for the injuries suffered by the patient. Accordingly, even if a doctor provides competent and reasonable treatment, he or she may nonetheless be found liable for any negative consequences of treatment if it is determined that he or she failed to obtain proper informed consent from the patient.
  
The foundational case with respect to informed consent is Reibl v Hughes, [1980] 2 SCR 880. In this case, the Plaintiff suffered a stroke while undergoing surgery to remove a blockage in his left carotid artery. The Plaintiff brought a lawsuit against the Defendant neurosurgeon and was successful at trial. The decision was appealed and ultimately ended up before the Supreme Court of Canada. The Supreme Court restored judgment against the Defendant neurosurgeon on the basis that he had failed to disclose all material risks of the procedure to the Plaintiff. The Court accepted that, had the Plaintiff been informed of the risk of stroke, he would have postponed undergoing surgery until his pension had vested. Accordingly, the Plaintiff was awarded judgment, notwithstanding that the surgery was performed appropriately.
 
In its decision, the Supreme Court established a framework with respect to the evaluation of informed consent lawsuits that has subsequently been followed and elaborated on. In order to successfully prove an informed consent case, the Plaintiff must prove that:

1.  Relevant information was not disclosed by the treating physician prior to initiating treatment; and 
2. The Plaintiff would not have consented to the treatment had proper informed consent been obtained prior to the treatment.

Disclosure of Material Risks and Alternative Treatments

As mentioned above, the first step in assessing an informed consent case is determining whether the treating physician failed to disclose relevant information to the patient. Generally speaking, these arguments center around the physician’s failure to inform the patient of either: 

1. The material risks of a particular treatment; or 
2. Alternative treatment options to the proposed treatment.

The Alberta cases of Rhine v Millan, 2000 ABQB 212 and Dickson v Pinder, 2010 ABQB 269 provide guidance on what risks must be shared with the patient. At paragraph 21 of the decision in Rhine v Millan, the Court provides a summary of the law on what information constitutes a “material risk” that must be shared with the patient. The Court emphasizes that this is evaluated in a patient-centered manner, and the focus of the analysis should be on whether information would be significant to the patient as well as what the medical profession deems material. The test is what the patient would want to know and the duty of disclosure includes answering any questions posed by the patient. A risk which occurs only rarely may still be deemed material if it has serious consequences. 

In addition to disclosing all material risks to patients, physicians must also disclose alternative treatment options. Accordingly, even if a physician shares all material risks of a procedure with a patient, the patient may have still have a valid case in informed consent if the physician did not inform the patient of other treatment options that may have been less risky, or otherwise preferable, to the patient. In Cory v Bass, 2011 ABQB 360, the Alberta Court of Queen’s bench made the following statement regarding the requirements to disclose reasonable treatment alternatives at paragraph 112:  

In summary, I stress again the point that a physician must disclose reasonable alternatives to any therapy they propose. A patient cannot make a meaningful and informed choice to consent to a therapy unless the patient knows the consequences of reasonable alternatives and is able to balance the risks and benefits of the proposed therapy against those alternatives.

In Seney v Crooks, 1998 ABCA 316, the Alberta Court of Appeal provides additional clarification with respect to what constitutes a reasonable alternative. At paragraph 60, the Court holds that a physician must disclose all alternative treatments that other doctors in the same speciality prefer, even if the treating physician does not agree.
 
In summary, prior to initiating treatment on a patient, Canadian doctors have an obligation to ensure that the patient is aware of all material risks of treatment and all reasonable alternative treatments. If a patient can establish that he or she was not provided relevant information, the doctor will be found to have breached his or her duty to obtain informed consent.

Proving Causation

In addition to proving that informed consent was not obtained, the Plaintiff must also prove that the doctor’s failure to obtain informed consent caused his or her injuries. In other words, it is not enough to prove that relevant and material information was not disclosed by the treating physician. The Plaintiff must also show that he or she would have declined the treatment, or opted for alternative treatment, had proper informed consent been obtained.
 
If there has not been proper disclosure, the Court must consider what a reasonable person in the patient’s position would have done had there been proper disclosure of the attendant option, benefits and risks. This is referred to as the modified objective test. In doing so, the Court will take into account circumstances specific to the Plaintiff. For example, if sharp eyesight is crucial to a Plaintiff’s occupation, the Court would consider this factor in determining whether or not causation has been proven with respect to the failure to inform the patient of the risk of loss of eyesight in a proposed procedure.
 
If an alternative treatment is available but not disclosed, the plaintiff must establish that the reasonable person would have had the treatment had it been disclosed, and that the treatment would not have produced the same or more serious injury.

Summary 

In summary, Canadian Doctors owe duties beyond administering appropriate and competent treatment. Canadian doctors owe a duty to patients to obtain proper informed consent prior to administering treatment. This duty involves providing patients with information about all material risks, and alternative treatment options, before allowing them to decide on their course of treatment. If proper informed consent is not obtained, and the patient can prove that he or she would not have consented to treatment had all pertinent information been provided, a doctor may be held liable for the injuries a patient suffers in the course of treatment, notwithstanding that the treatment was performed in an appropriate manner. 

If you think you may have a claim against a treatment provider for failing to obtain informed consent and wish to speak with a lawyer, you can contact our team here. 

By Ian Miller