Physicians in Ontario must obtain their patient’s informed consent before administering any treatment. This obligation requires that physicians ensure their patient is aware of all relevant information concerning the proposed treatment and freely consents to its performance. If a physician fails to obtain informed consent, the patient may have grounds to pursue a claim for damages. In this post, I outline the key elements of informed consent and discuss when failure to obtain consent might give rise to a legal claim.
The Elements of Informed Consent
Each person has the right to decide what will or will not be done to their body, including the right to be free from unwanted medical treatment (Fleming v Reid, 1991 CanLII 2728 ONCA). To safeguard this right, legislation and the common law impose obligations upon physicians to ensure that any treatment is performed only with the patient’s informed consent.
While the doctrine of informed consent originated in the common law, its general principles have been codified in Ontario’s Health Care Consent Act, 1996 (“HCCA”). This legislation outlines the following criteria required for consent to treatment (HCCA, s. 11(1)):
- It must relate to the treatment;
- It must be informed;
- It must be given voluntarily; and
- It must not be obtained through misrepresentation or fraud.
Importantly, the HCCA requires that consent be ‘informed’. This requirement will only be satisfied when the individual is aware, before giving consent, of the nature of the proposed treatment, its expected benefits, material risks, and side effects, as well as alternative options and the likely consequences of not undergoing the treatment (HCCA, s. 11(2)). As such, a physician must clearly communicate all relevant information about the proposed treatment to their patient.
Informed Consent and Capacity
Furthermore, a patient must have the ‘capacity’ to provide their consent. This means the patient must be able to understand the relevant information needed to make a decision about the proposed treatment and appreciate the reasonably foreseeable consequences of their decision or the lack thereof (HCCA, s. 4(1)).
Physicians are entitled to assume that a patient has the capacity to provide consent unless there are reasonable grounds to believe otherwise (HCCA, s. 4(2)).
If a patient is deemed incapable of consent, a substitute decision-maker may do so on their behalf (HCCA, s. 20(1)). The substitute decision-maker must act in accordance with the patient’s wishes or, if these are unknown, the patient’s best interests (HCCA, s. 21(1)).
Legal Remedies for Treatment without Informed Consent
A patient who undergoes treatment without having given informed consent may be entitled to damages through a claim of battery or negligence, depending on the particular facts of the case.
A claim for battery may arise if a physician performs a treatment without obtaining consent or if consent is obtained through misrepresentation or fraud. In contrast, a patient may bring a claim negligence claim if a physician’s failure to provide adequate information results in uninformed consent and thereby causes them to suffer harm (Reibl v Hughes, 1980 CanLII 23 SCC). For example, if a patient undergoes surgery without being informed of the procedure’s material risks, and those risks subsequently materialize, the patient may have grounds for a negligence claim against the physician who obtained their consent.
To successfully claim negligence, a patient must prove that they would not have consented to the treatment if they had been informed of all material risks. The patient must not only demonstrate that they personally would have declined the treatment, but also that a ‘reasonable person’ in their circumstances would have made the same decision (Reibl v Hughes, 1980 CanLII 23 SCC). If both criteria are met, the court may award damages to the patient.
The Emergency Exception
Although informed consent is generally required in all circumstances, there are limited exceptions in emergency situations.
Where an individual is incapable of providing consent, treatment may be provided where there is an emergency, and the delay which would result from obtaining consent or refusal on the patient’s behalf would prolong their suffering or put them at risk of serious bodily harm (HCCA, s. 25(2)). Importantly, such treatment is only permissible for as long as is reasonably necessary to obtain consent from the patient’s substitute decision-maker (HCCA, s. 25(6)) or the patient regains capacity (HCCA, s. 25(9)).
Similarly, a patient who appears to be capable may be administered treatment without their express consent where there is an emergency, communication with the patient is impossible, further delays would prolong their suffering or place them at risk of bodily harm, and there is no reason to believe the patient does not what treatment ((HCCA, s. 25(3)). In these situations, emergency treatment may only continue until communication with the patient can be established, at which point their consent will be required for any further treatment (HCCA, s. 25(7)).
Conclusion
In most cases, a physician should only provide treatment to a patient after obtaining clear and informed consent. If informed consent is not provided and the patient suffers harm as a result, there may be grounds for legal action.
At Breedon Litigation, we have extensive experience in medical negligence actions, including those involving failures to obtain informed consent. For personalized legal advice, consider contacting our law firm for a free consultation.
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