Informed Consent

Bollman v. Soenen, 2014 ONCA 36:

[18]       The trial judge's determination of liability on informed consent was based on a misapprehension of the law.  In the context of medical treatment, battery arises when there is no consent at all.   An example would be when the wrong operation or procedure was conducted.  When there is an allegation of a deficiency in the explanation of risks, the issue is that of informed consent.

[19]       This distinction was clarified by the Supreme Court of Canada in Reibl v. Hughes, [1980] 2 S.C.R. 880.   At pp. 890-92, Chief Justice Laskin said:

In my opinion, actions of battery in respect of surgical or other medical treatment should be confined to cases where surgery or treatment has been performed or given to which there has been no consent at all or where, emergency situations aside, surgery or treatment has been performed or given beyond that to which there was consent.

…

…in my view, unless there has been misrepresentation or fraud to secure consent to the treatment, a failure to disclose the attendant risks, however serious, should go to negligence rather than to battery.

[20]       Although the trial judge headed the discussion of informed consent "Battery," his analysis makes it clear he was speaking of a failure to disclose the risks of surgery. The proper issue is therefore informed consent.  Reibl v. Hughes sets out a two-part test for informed consent.  The first is subjective; the second is objective. 

[21]       The subjective test is based on what the particular patient would have agreed to if the risks were known.  It will of necessity vary from patient to patient and take into account factors unique to the individual.  The objective test is based on what a reasonable person in the respondent's position would have done.  Both the subjective and the objective criteria must be established for the respondent to prove on balance of probabilities that she is entitled to damages for the lack of informed consent. 

[22]       The subjective test alone cannot be relied upon, for it imports an element of hindsight reasoning.  A patient could be inclined to say that he or she would not have undergone the procedure if the risks that in fact materialized and that form the basis of the action had been known.  As stated in Reibl v. Hughes, at p. 898:

[T]o apply a subjective test to causation would, correlatively, put a premium on hindsight, even more of a premium than would be put on medical evidence in assessing causation by an objective standard.

[23]       The objective test is based on reasonableness, as stated in Reibl v. Hughes, at p. 900 :

In short, although account must be taken of a patient's particular position, a position which will vary with the patient, it must be objectively assessed in terms of reasonableness.

[24]       Here, the trial judge dealt only partially with the subjective test and not at all with the objective test.

[25]       To meet the subjective test, the respondent must establish that the material risks or treatment alternatives were not adequately disclosed and that had they been disclosed, consent would not have been given.  The evidence here was that there was a 2% risk of damage to the ureter.  The appellant testified that his standard risk conversation includes a discussion of possible injuries to the surrounding organs, including the ureter, as well as bleeding and infection.  The respondent's evidence was that she did not recall a discussion of risks beyond that of bleeding and infection.  On this basis, the trial judge held as follows:

I believe her when she says that the defendant informed her of the general risks, but not the risk of damage to her ureters.

[26]       Whether this is a reasonable finding on the evidence or not, it only addressed part of the subjective test.  There could be no finding as to what she would have done because she was not asked what she would have done had she been told there was a 2% chance of damage to the ureter.

[27]       The trial judge inferred that the respondent would have "chosen the less invasive medical option" had "anyone had told her that the result could be achieved otherwise" than by the surgery.  There is no evidence to support this finding since she was never asked about medical options or less invasive treatments and there was no expert evidence that a medical option would have been beneficial.  On the contrary, the evidence was that a hysterectomy was a reasonable treatment for her condition.  Thus, there was no evidentiary basis for the trial judge to conclude that the subjective aspect of lack of informed consent was established.

[28]       The trial judge did not consider the objective aspect of the test at all. The respondent was suffering from prolonged fatigue, she was past child bearing age, and she had tried other treatments without success. Had he considered the objective test the trial judge may well have concluded that a reasonable person in the respondent's position would have consented to the surgery.