4. Consent to Treatment and Counselling
a) GENERAL PRINCIPLES
- consent required prior to performing any procedure
- consent must be full, related to immediate procedure and related issues
- if patient is competent only her consent alone is needed
- must be voluntary and based upon a full and frank disclosure of nature and risks of procedure
- consent may be explicit or implicit, may be limited
- health care proffessional may refuse treatment, but cannot not ignore requested limitations
Health Care Consent Act 1996 has supplanted much common law
b) EXCEPTIONS TO THE GENERAL PRINCIPLES OF CONSENT
1. unforseen medical emergency where it is impossible to obtain consent
2. in cases of consent to a course of counselling, treatment or operation, patient will be viewed as having given implied consent to subsequent procedures which are necessarily incidental to agreed treatment, unless consent is expressly negated
3. proffessional has right to withold info if its disclosure would undermine patients morale and prevent her from seeking further treatment (limited application today)
Marshall v Curry[1933](NS SC)- removal of gangrenous testicle w/o express consent during course of hernia operation- no need for consent in cases of emergency, conditin could not have been reasonably forseen, and emerg. arose during the course of the operation, physician has a higher duty to save the life of the patient
Scope of Consent:
Mallette v Shulman[1987](ON HC)- dr administered a blood transfusion to a JW despite the knowledge that she carried a card stating she did not want any blood, this was confirmed by her daughter but he continued anyway..is he liable in battery? - drs concern about validity of card although honest was not foundedin the evidence before him- question whether informed consent extend to informed refusal, no b/c to be valid consent must be informed & dr must treat w/n bounds of htat consent, but dsame laibilty considerations do not apply to refusal, right to refuse treatment is founded upon supremecy over ones body, not understading of risks of refusal.
c) THE BURDEN OF PROOF AND CONSENT FORMS
Onus of proof lies w/ health care workers on BOP
consent forms are of only limited value
d) COMPETENCE TO CONSENT
Test: is the patient able to understand the nature of the proposed treatment and its risks, not is the patient able to amke a reasoned and prudent descion
i) MINORS
Statutory minimum is 16, but no recog min age at common law, same test as adults
ii)ADULTS
Case by case basis-most often arises w/ respect to mentally ill, but what about an alcoholic, a sedated patient, or a patient in severe shock?
e) SUBSTITUTE CONSENT
- dealt w/ under ss 22-24 of Health Care Consent Act, pric=nciples easy to state in theory, but diff’t to apply
f) INFORMED CONSENT: BATTERY OR NEGLIGENCE?
Definition: in order for consent to be valid a victim must be aware of the possible harmful consequences of his or her actions.
Riebl v Hughes[1980]-if a patient has not been informed about risks of treatment, may bring about claim in battery, but if patient has been informed can bring only claim in negligence
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