Oct 2, 2012 / 5:00 am
Everyone has gone to a doctor for something. And almost everyone has gone to a doctor for some sort of procedure, whether only minor stitches or a major surgery.
When performing a procedure on a patient, a doctor must get that patient’s consent. So, what does that mean? Well, consent in this context is very tricky...
Without going into too much detail, the patient has to consent to the procedure voluntarily (i.e. by free will and without any pressure). The patient must also have the capacity to actually give consent (i.e. not be suffering from some sort of mental disability). And, the consent must be informed, meaning the doctor must tell the patient several things, such as the risks involved.
If there was no consent, the doctor could be sued.
This issue of INFORMED consent is the topic of this column, as it is likely the most important issue for most people.
So, in order for the patient to be INFORMED, what does the doctor have to tell the patient?
Put simply, the doctor is required to disclose the answers to specific questions, the nature and gravity of the procedure, and any risks that are probable (likely) to occur. The doctor must also tell the patient about any serious risks (such as death or paralysis) that are merely a possibility (and have a remote chance of occurring).
Doctors are also required to disclose information that he/she knows would influence the patient’s choice to consent to the procedure.
Clearly, doctors have a broad duty for disclosure.
But, are doctors required to disclose their personal information (like their own health conditions) to patients? Short answer: no (with shades of grey).
Generally, doctors don’t have to disclose their own health issues; but, doctors may have to disclose their medical conditions if their conditions pose a risk (to the patient’s health) that is likely to occur or if their conditions pose a risk that could occur (but is unlikely) and would result in serious consequences to the patient, like death.
Consider Halkyard v. Mathew, 2001 ABCA 67. In that case, a woman died following a hysterectomy performed by the defendant physician, who had epilepsy. After the woman’s death, the husband sued the doctor and claimed that his wife had not given informed consent. In other words, the husband was arguing that his wife would not have consented to the surgery had she known about the doctor’s epileptic condition. Keep in mind that the doctor did not suffer an epileptic seizure during the operation; his condition did not impact the surgery (at all).
In this case, the court decided that the doctor did not have to disclose the epileptic condition as the condition was controlled by medication.
In a similar situation (but involving doctor inexperience rather than health), the court in Hopp v. Lepp,  2 SCR 192 found that the physician was under no obligation to disclose that it was his first such surgery after becoming certified. As you can imagine, this was great for young doctors…
And now you know.
**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.
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