Consent to Medical Treatment, Counselling, and Care
Prior to conducting physical exams, tests, surgeries, etc., healthcare providers and professionals need to acquire consent that pertains to the procedure or treatment. This consent should be obtained beforehand and must be in relation to the specific procedure. Alberta hospitals and doctors ask for a parent or guardian’s permission before performing surgical procedures on persons under 18 and who are not yet 18. Informed consent is composed of four elements, including decision capacity, documentation of consent, disclosure, and competency. Upon receiving information about a particular treatment or test, a doctor will let you decide whether or not to undergo that treatment. As a rule, the patient’s consent must be the result of a full and open discussion of the intervention and its risks. In order for the patient to understand the treatment, neither the technical details nor the underlying research is required
In Battrum v. British Columbia (2009), 70 C.C.L.T. (3d) 164 (B.C.S.C.): the plaintiff called 911 because she fell off a horse and hurt her shoulder. She sued the paramedic claiming he was “abrupt and unsympathetic” and “behaved like a lout”. The court dismissed her claim stating that the plaintiff expressly sought the assistance of the paramedic and desired to be taken to the hospital. Further, the paramedic’s action was within the reasonable scope of the treatment she sought and clearly impliedly agreed to.
Exceptions to the General Rule of Consent
In three cases, the courts have loosened up the rigid consent requirements.
- It is permissible for a healthcare professional to intervene without a patient’s consent in unforeseen medical emergencies where obtaining the patient’s consent is not possible.
- As a second exception, patients may provide a general consent to a course of treatment or procedure, a treatment plan or surgery. In such a case, the patient will be seen as indirectly consenting to any subsidiary tests and procedures that are incidental to the consented course of treatment.
- At one point, the Canadian courts ruled that healthcare professionals had a right to “withhold information from patients if its disclosure would impair their morale and make them less likely to undergo required treatment or surgery”
In Marshall v. Curry [1933] 3 D.L.R. 260 (N.S.S.C), the plaintiff went to the defendant doctor for a hernia. The defendant removed his testicle during the hernia operation, as he used his professional judgment and believed that if the testicle was not removed it could have resulted in blood poisoning. Basically, the doctor deemed the removal necessary for the patient’s well-being and health.
Chisholm, C.J. held that he was unable to understand the opinion that “in cases of emergency, where the patient agrees to a particular operation, and in the prosecution of the operation, a condition is found calling in the patient’s interest for a different operation, the patient is said to have made the surgeon his representative to give consent.
Chisholm, C.J. further stated that “the will of the patient is not exercised on the point. There is no such appointment. I think it is better, instead of restoring to fiction, to put consent altogether out of the case, where a great emergency that could not be anticipated arises, and to rule that it is the surgeon’s duty to act to save the life or preserve the health of the patient; and that in the honest execution of that duty he should not be exposed to legal liability”.
The court concluded that the doctor did what was in the patient’s best interests, and it was for the protection of his health and life.
Malette v. Shulman (Ont. H.C.J.), 1987 CanLII 4096 (ON SC)
The Defendant, Dr. Shulman, on being confronted by an unconscious patient in a life-threatening situation in whose possession was found a card refusing blood as a Jehovah’s Witness, faced a dilemma of dreadful finality. An immediate decision was required, either to follow the instruction given by the card or to administer the blood transfusion which he regarded as medically essential. He squarely faced the fundamental issue of the conflict between the patient’s right over her own body and society’s interest in preserving life.
Dr. Shulman acknowledged an awareness of the patient’s right to decide against a certain treatment in favor of alternative treatment and of his ethical obligation to abide by that decision. However, upon considering the validity of the card, he was not reasonably satisfied that it constituted an adequate instruction because there was no evidence that:
- it represented the plaintiff’s current intent;
- the instruction applied to the present life-threatening circumstances, and
- at the time the plaintiff made the decision and signed the card she was fully informed of the risks of refusal of treatment and accordingly that this was a rational and informed decision.
In terms of its inherent frailties, the defense attacked the “card” on the grounds that it may have been signed under religious peer pressure, under medical misinformation, not considering life-threatening circumstances, or not reflecting current instructions.
Dr. Shulman believes that participation of the relatives compounds the problem by adding more uncertainties, including the relative being the closest blood relative; representing a consensus among the relatives; competent to consent lawfully; aware of the risks; and not self-interested?
Donnelly J.:
The card itself presents a clear, concise statement, essentially stating, “As a Jehovah’s Witness, I refuse blood”. That message is unqualified. It does not exempt life-threatening perils. On the face of the card, its message is seen to be rooted in religious conviction. Its obvious purpose as a card is as protection to speak in circumstances where the card carrier cannot (presumably because of illness or injury). There is no basis in evidence to indicate that the card may not represent the current intention and instruction of the cardholder.
I, therefore, find that the card is a written declaration of a valid position that the card carrier may legitimately take in imposing a written restriction on her contract with the doctor. Dr. Shulman’s doubt about the validity of the card, although honest, was not rationally founded on the evidence before him. Accordingly, but for the issue of informed refusal, there was no rationally founded basis for the doctor to ignore that restriction.
The defense contended that the doctrine of informed consent should be extended to informed refusal on the following analysis… Dr. Shulman was obliged in law to advise the refusing patient of the attendant risks. Only then could he be satisfied that the refusal was based on a proper understanding of risks. Since Mallette, no case has been cited supporting this concept of informed refusal of treatment.
Accordingly, without the benefit of authority, it appears that Hopp v. Lepp (1980), 112 D.L.R. (3d) 67, [1980] 2 S.C.R. 192, [1980] 4 W.W.R. 645 recognized the well-established principle of informed consent is the patient’s right to self-determination regarding his body. Essentially, patients have the right to determine what is done to their bodies if anything only valid consent can exempt the treating doctor from liability for battery. Informed consent is required. Therefore, doctors must explain the risks to their patients. The doctor is legally and ethically bound to treat within the confines of that consent. Liability considerations do not apply to a patient who refuses treatment. Consequently, a doctor cannot be held liable for battery in that situation. Patient autonomy is inextricably linked with the right to refuse treatment. A person’s right to refuse treatment does not rest upon a comprehension of the risks involved.
While life is a sacred value, fair social commentary admits that certain aspects of it are more important than life itself. There are countless examples of such admirable and honorable motivations in society, including patriotism in war, duty by law enforcement officers, protection of spouses, children, and even religious martyrdom or death before dishonor. Religious freedom is one such value.
In a nutshell, informed consent does not encompass informed refusal. It wasn’t appropriate to ignore the written directions on the basis that it could not be verified as an informed decision. The card constituted a valid restriction of Dr. Shulman’s right to treat the patient and the administration of blood by Dr. Shulman did constitute battery.
Author: Lydia Iboko
