Q: I was recently in the hospital for treatment, and before fairly routine and minor surgery, I had to complete and sign a big consent form. What was that about?
A: This is about ensuring you understand the procedure you’re about to undergo, the risks involved and the fact that things can go wrong even if no one makes a mistake. This is called the doctrine of informed consent.
It is the right of patients to get enough information to allow them to make an informed decision regarding whether or not to agree to have a specific surgery or treatment.
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Either the doctor or a person representing the doctor does this. In Canada, the surgeon usually explains this to you and gets you to sign a form.
The form has some legalese in it but essentially it confirms what the doctor just told you and states you agree that you want to go ahead with the medical treatment.
Informed consent recognizes that the ultimate decision about whether to have treatment rests with the patient rather than the doctor. A patient is entitled to turn down treatment, even if that appears to be stupid. A patient doesn’t need a reason. Alternatively, a patient may have reasons that few other people agree with, such as social or religious beliefs.
So even if the doctor thinks this is absurd, it is a patient’s right to choose to consent.
Without consent, any invasive procedure involving the patient’s body is treated as an assault, which can form the basis of legal action.
The “informed” part of informed consent comes from the concept that to do this, patients need to know something about the treatment. This doesn’t mean they have to be as knowledgeable as their doctor, but it does mean that certain basic knowledge and risks need to be explained.
Informed consent is crucial from the viewpoint of the doctor and a hospital. If it was not obtained, the patient may have the right to sue the doctors, nurses and the hospital or health authority for negligence or malpractice.
Issues arise when dealing with minors (people younger than 18) or those with mental challenges who cannot make their own decisions.
In those cases, it is usually the parents, custodial parent or legal guardian who must obtain the information and provide the consent.
In cases where most people would likely consent to a procedure but the parents won’t because of personal beliefs, court applications may be made to have a judge determine what is in the child’s best interests.
This is a tough area of law because freedom of religion and expression come into direct conflict with the best interests of a child. Parents’ decisions have, in some cases, been overridden by a judge.
Information required
Also bear in mind that people can give valid consent to medical treatment only if they were given all the necessary information. Doctors aren’t allowed to ask in the most general fashion whether they have your consent to perform the
procedure.
Patients have to be able to understand the consequences of giving (or not giving) consent. Not all the consequences have to be understood, just those that are reasonable and foreseeable.
If there is a one percent chance you could lose your sight during surgery, you should know that before you agree. You might not be entitled to know if it is a one in 20 billion chance because the odds are so remote that it would occur.
When asking for your consent,
the doctor should explain and the form you sign should confirm the following:
* The exact description of the proposed treatment.
* Whether alternatives exist and which ones are reasonable.
* The risks and benefits associated with each of the above.
In many respects, informed consent is the same as being a good consumer. Know and understand what your doctor is proposing is do to you. If you agree to bear the risks, sign the form. If you don’t agree, don’t sign it and don’t have the procedure.
Rick Danyliuk is a practising lawyer in Saskatoon with McDougall Gauley LLP. He also has experience in teaching and writing about legal issues. His columns are intended as general advice only. Individuals are encouraged to seek other opinions and/or personal counsel when dealing with legal matters.
