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The Truth About Medical Consent Forms

Medical consent forms are frequently signed by patients prior to undergoing medical or surgical treatment. However, the legal effect of the medical consent form is not well understood by many Canadians.

It is a common misunderstanding that a medical consent form signed before medical or surgical treatment prevents an injured patient from claiming against healthcare practitioners or hospitals. The truth is that a medical consent form plays a very small role in a medical malpractice action, if any.

Consent in Medicine
There are two elements to consent that are relevant to medical treatment. The first and most basic element relates to the fact that that unless there is a serious emergency, a healthcare practitioner cannot provide any treatment to a patient unless that patient allows the healthcare practitioner to do so. In the case of a serious emergency where the patient cannot provide express consent, it is assumed that the patient consents to lifesaving treatment, unless there is information to the contrary. If a healthcare practitioner provides treatment without any consent, then the healthcare practitioner would have committed a battery.

The second element related to consent in medicine is known as the principle of informed consent. This element goes beyond an agreement between the healthcare practitioners and patients that treatment can be provided. Not only do patients have the right to choose to undergo treatment, they also have the right to choose the type of treatment they will undergo.

In order to for patients to truly provide consent to treatment, they must be informed of all reasonable alternatives to treatment and the risks and benefits of each option. If the healthcare practitioner does not provide this information, an injured patient may have a claim for failing to obtain informed consent if the patient can show that with all the information, a reasonable person in their circumstances would have chosen a different option and therefore, would have avoided the injury. In those circumstances, an injured patient can claim for failing to obtain informed consent even if they cannot show that there was actual negligence in the way the treatment was carried out. 

What do consent forms do?
In effect, consent forms provide some evidence that the patient consented to treatment so as to protect the healthcare practitioner from a claim in battery. Most medical consent forms also contain a generic statement that the patient has been advised of the nature, risks and benefits of treatment and any treatment alternatives. As a result, the medical consent form may also provide some evidence that an informed consent discussion took place prior to treatment.

However, medical consent forms do not remove the right of a patient to claim against a healthcare practitioner for failing to obtain informed consent for treatment and these forms do not set out the details of the conversation and do not mean that a full informed consent discussion has actually taken place. 

In many cases, patients become aware of an alternate treatment after the injury has occurred. In other cases, patients become aware that they were not provided with full information about the alternatives even though they were advised of the existence of another option. In these cases, the healthcare practitioners have not met their duty to obtain informed consent to treatment and may be held responsible for the injuries. Medical consent forms also have no impact on an injured patient’s right to claim for negligence before, during or after treatment. As a result, an injured patient should consult an experienced medical malpractice lawyer regardless of whether a medical consent form has been signed. 

Written by Michael McVey

Posted on December 14, 2018

INDIGENOUS LAND ACKNOWLEDGEMENT

The lands on which Edmonton sits and the North Saskatchewan River that runs through it have been the sites of natural abundance, ceremony and culture, travel and rest, relationship building, making, and trading for Indigenous peoples since time immemorial. Edmonton is located within Treaty 6 Territory and within the Metis homelands and Metis Nation of Alberta Region 4. We acknowledge this land as the traditional territories of many First Nations such as the Nehiyaw (Cree), Denesuline (Dene), Nakota Sioux (Stoney), Anishinaabe (Saulteaux) and Niitsitapi (Blackfoot).

Weir Bowen acknowledges the many First Nations, Métis and Inuit who have lived in and cared for these lands for generations. We are grateful for the traditional Knowledge Keepers and Elders who are still with us today and those who have gone before us. We make this acknowledgement as an act of reconciliation and gratitude to those whose territory we reside on or are visiting.