Informed Consent: When does my doctor NOT need my permission to treat me?
What is “Informed Consent”?
In the medical context, informed consent is the principle that a patient can give proper permission (‘consent”) to treatment only after being informed of the risks and implications of the treatment.
The law recognizes that you can only give true consent to receive medical treatment if you are provided with all the information necessary to make a decision about the proposed treatment. It is not enough for your doctor to simply ask if he or she has permission to perform a medical procedure.
I have written a number of articles about informed consent. See for example: Informed Consent: Lies, Damned Lies and Statistics in Cancer Claims and What Does Informed Consent Have To Do With My Nova Scotia Medical Malpractice Claim? I have also posted a video explaining the basics of informed consent in my firms Video Library.
Exceptions to the Rule
Like evry “rule” there are exceptions. So today I wanted to discuss when your doctor does not need your permission to administer medical treatment.
Some of the exceptions are obvious, some not so much.
The first and most obvious exception is in the case of an emergency when a patient is incapable of giving her informed consent. For example when a patient who needs lifesaving surgery is unconscious because of their injuries. In this case, the potential harm from withholding treatment is greater than the potential danger of the treatment.
For this exception to apply there must also be no immediately available family member to give consent.
Infant or Mental Disability
Related to this exception of emergency is that of incompetence. Here, a patient cannot give consent because of a mental disability or because of infancy. Once again, for the exception to apply, a family member must not be available to give consent.
Explanation May Harm the Patient
The third exception to the duty to disclose is when the physician reasonably believes that full disclosure of all the risks will have an adverse affect on the patient’s physical or psychological well being.
In other words, if there is a necessary procedure with particularly frightening risks involved, a doctor may reasonably decide not to disclose all the details of the risks to the patient – to save them from the anxiety. Relying on this exception is problematic and the the doctor should be prepared to clearly justify why the risks were not fully disclosed.
A physician does not have to disclose risks to a patient that are considered to be common knowledge or when the patient already knows of the risks. For example, a doctor may not have to disclose the risk of infection following surgery because patients are presumed to know that the risk exists.
Doctor Didn’t – Couldn’t Know
A fifth exception arises in instances when a physician does not know of a certain material risk. Obviously a doctor can’t explain a risk they don’t know about.
But this isn’t an excuse for doctors not to be well informed. Doctors are expected to meet the standard of a reasonable physician when it comes to educating themselves about risks.
For example, a doctor would not be liable for harm resulting from the prescribing of flu medication if the patient has a previously undiscovered sensitivity to the medication.
Doesn’t Want to Know
The final exception to the duty to disclose is when a patient waives the right to full disclosure by requesting that the physician not explain the risks of a treatment. I have to say i haven’t found any reported decisions in Canada where this exception has been applied, although there are some cases in the States.
Want More Information?
If you would like more information on informed consent, and the exceptions, contact me for your free copy of one of the public legal education resources I have written: Health Scare: The Consumer’s Guide to Medical Malpractice Claims in Canada or take a look at this article:Informed Consent to Medical Treatment