Hospitals and Health Care - Consent

Prepared by Kathleen Maragh, B.A., B.S.W., LL.B. of the Alberta Bar

Hospitals and Health Care (Ontario) — III — Relationship Between Patients and Health Professionals/Health Facilities — 2 — Consent

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III.2.(a) — Common Law

§118 Before a health professional touches a patient, and especially before any treatment is undertaken, the patient's consent should be secured. This consent need be neither in writing nor expressly given if the patient so conducts himself or herself as to lead a health professional reasonably to believe that he or she has given consent to proceed. Once a patient has consented to the general nature of the treatment, the health professional need not obtain additional consent to every procedure undertaken unless the new procedure represents a material risk to the patient. Treatment undertaken without consent, or with a consent given as a result of fraud or misrepresentation, renders a health professional vulnerable to an action in battery or an action for damages.

§119 Informed consent is a distinct cause of action, separate from a breach of the standard of care. This requires the plaintiff to prove the following: that the physician failed to disclose the nature of the procedure or its material risks such that the patient was uninformed when undergoing the procedure in question; that the patient would not have undergone the procedure in question had he or she been properly informed; and lastly, that a reasonable person in the patient's position would not have undergone the procedure in question if fully apprised of the material risks.

§120 A consent obtained by a patient must be an informed consent; it is the health professional's duty to explain to the patient not only the treatment, but to disclose the attendant risks as well as the alternatives to the proposed treatment; and the patient is entitled to be given the proper time and environment in order to assess the information imparted.

§121 The test for informed consent has two parts: the subjective test, which is based on what the particular patient would have agreed to if the risks were known, and the objective test, which is based on reasonableness. Neither test alone can be relied upon; both must be considered in determining whether informed consent was established.

§122 A surgeon who recommends an operation which involves known risks, that is probable risks, or special or unusual risks, is under an obligation to disclose those risks to the patient for there to be an informed risk consent.

III.2.(b) — Patient's Entitlement to Refuse Treatment

§123 It has been held by a court in Quebec that a patient who is capable of an informed consent to treatment is entitled to refuse such treatment, even if the refusal threatens the life of the patient.

§124 The refusal of a patient to submit to a minor surgical procedure which would alleviate his or her condition, is unreasonable, but a refusal to submit to a major surgical procedure, with a 50/50 chance of relief, is not unreasonable. Where a patient has received conflicting medical opinions as to the likelihood of success of surgery, then it is reasonable to refuse to be operated on.

III.2.(c) — Charter Rights and Withholding Treatment

§125 Caregivers who withhold medical treatment from a dependant contravene the dependant's rights under the Charter of Rights and Freedoms.

§126 Where the appropriate minister refuses to provide a controversial treatment for a patient's mental illness, the patient's Charter right to life, liberty and security will not be infringed.

III.2.(d) — Parens Patriae Jurisdiction of Court and Consent to Treatment

§127 The provincial superior court is vested with parens patriae jurisdiction, authorizing the court to act for the protection of those who are deemed not to be able to care for themselves. While the scope of the jurisdiction is unlimited, the discretion to be exercised is not unlimited; the discretion is to be exercised for the benefit of the person in need of protection and not for the benefit of others. In sum, the parens patriae jurisdiction is an important and broad jurisdiction of superior courts.

§128 Two limitations on the parens patriae jurisdiction are important. First, as it is a prerogative power, it must yield to statutory provisions. In short, where there is a legislative scheme, the protective jurisdiction of the court applies only when there is a gap in that legislation: use of parens patriae jurisdiction is, accordingly, not meant to be an avenue for statutory amendment or broad interference with existing laws, and does not create substantive rights. The second important limitation on the parens patriae jurisdiction is that it is a jurisdiction of the superior courts, and cannot be exercised by other tribunals or courts.

§129 Parens patriae jurisdiction may be used to exhort foreign police forces, governments and others to take whatever action they could to protect children from harmful effects of abduction and retention in foreign country.

III.2.(e) — Regulated Health Professions and Duty to Obtain Consent

§130 Members of the regulated health professions who perform a treatment without the consent of the patient commit an act of professional misconduct sufficient to warrant disciplinary proceedings.