Was There Consent?

“The central question in this appeal is whether the conventional approach to causation in negligence actions should be varied where the claim is based on a doctor’s negligent failure to warn a patient of a small but unavoidable risk of surgery when, following surgery performed with due care and skill, such risk eventuates but is it not shown that, if duly warned, the patient would not have undergone surgery with the same small but unavoidable risk of mishap. Is it relevant to the outcomes of the claim to decide whether, duly warned, the patient probably would or probably would not have consented to undergo the surgery in question? ” Lord Bingham, Chester v. Ashfar [2004] UKHL 41

The subject of consent is potentially as broad as it is deep. In this article my intention is to outline my view as to why the current state of the law of informed consent in Canada is outdated and inconsistent with a nation that prides itself on protecting the human rights of its citizens.

The law is generally a reflection of the broader society’s values. It is no surprise to read of a nineteenth century case where a court condoned the removal of diseased organs (ovaries) despite the patient’s express wishes to the contrary.i The verdict was likely a reflection of both the unquestioning deference to physicians and the subservient position of women in society during that era. Society has parted company with medical paternalism. We place a value on personal autonomy and decision making. The right of an individual to maintain bodily integrity has been enshrined in the Canadian constitution.
“Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof
except in accordance with the principles of fundamental justice.”ii (my emphasis)

The law of informed consent in Canada is rooted in the law of torts.

The touching of one individual by another without consent (which may be express, implied, written or oral) is a potential battery. No damage or injury need arise from that touching for it to be actionable. It need only be outside the ordinary course of everyday living. Consent will validate that contact only if it is proven by the defendant. McLachlin J, as she was then, in Non-Marine Underwriters, Lloyds of London v. Scaleraiii
stated, “In my view the law of battery is based on protecting individuals’ rights to personal autonomy. To base the law of battery purely on the principle of fault is to subordinate the plaintiff ’s right to protection from invasions of her physical integrity to the defendant’s freedom to act.” Regrettably the protection of this right has been largely sidestepped with the development of the case law in Reibl v. Hughes 1980iv which effectively provided immunity from the tort of battery to a physician providing treatment. The Supreme Court of Canada wrote unanimously that “unless there has been misrepresentation or fraud to secure consent to treatment, a failure to disclose the attendant risks, however serious, should go to negligence rather than to battery.” The law of informed consent is ring fenced to the arena of
negligence.

Surgical Operation Patient Suffered A Stroke

Mr. Reibl was to undergo an operation to remove plaque build up in his arteries by his surgeon, Dr. Hughes. Through no fault of Dr. Hughes, Mr. Reibl suffered a massive stroke while on the operating table which resulted in impotence and paralysis. Mr. Reibl alleged that Dr. Hughes had not informed him of the risks of surgery. Mr. Reibl was 18 months away from retirement with a full pension and claimed that had he been warned of the risk of stroke inherent in the procedure, he would have waited until retirement.

The court unanimously held that in order to obtain medical consent, a physician must provide the patient with enough information so that an objective, reasonable person in the patient’s position could make an informed decision. However, a second aspect must also be proven in order to succeed in a claim of negligence. The plaintiff must prove that, but for the failure to disclose the risks of the medical treatment, he would not have undergone the procedure. In Reibl, the court outlined a ‘modified objective test’ to determine this second aspect. The court determines whether the ‘reasonable person’ would have undergone the treatment having been given all the risks and alternatives, while imposing characteristics of the plaintiff such as age, sex, and personal circumstances. This second stage test (the modified objective test) along with a conservative judiciary has resulted in the right of patients to be
fully informed of the risks prior to a procedure to be easily circumvented.

While Mr. Reibl succeeded in his claim, the case of Dickson v. Pinderv demonstrates the injustice that typically arises due to the current approach to informed consent. Ms. Dickson was suffering from neck pain and a headache when she attended Dr. Pinder’s chiropractic clinic. Dr. Pinder proceeded to manipulate her neck which was found to have caused Ms. Dickson to suffer a disabling stroke. Dr. Pinder failed to warn his patient of the risk of stroke associated with the manipulation he performed. Despite this finding Dr. Pinder was held not liable for Ms. Dickson’s significant injuries. This is because the court applied the strict application of the “but for” test of causation and held that even with full knowledge of the risks of manipulation, she would have proceeded with the chiropractic treatment. Upon what was this finding based? It was based upon scrutiny of Ms. Dickson’s personal and medical history. Specifically the court found Ms. Dickson did not have any fear of medical practitioners and trusted their judgment, she had previously both declined and followed through with surgeries, and she had a clear expectation that her neck was to be treated during her appointment. The fact that Ms. Dickson trusted her clinician ought not to be held against her. Failing to disclose risks and explain those risks is not just a breach of standard of care but a breach of fiduciary duty. The doctor patient relationship is a ‘special’ relationship in which the doctor is the individual with the knowledge of the expected benefits and known risks of the proposed treatment, not the patient. The patient is dependent upon her treating clinician to act honestly. Encouraging a patient such as Ms. Dickson to submit to manipulative therapy without fully advising her of the inherent risks could not be anything but dishonest. In the laying of his hands on Ms. Dickson’s body to administer this ‘treatment’, Dr. Pinder committed a breach of Ms. Dickson’s right of
self-autonomy which is far closer to the rights-based approach to the law of battery than negligence. The
compensation stems not from fault, but from violation of the right of personal autonomy.

Before I am driven from the BC bar I would urge the reader to look further afield to other common law countries. In the UK, the courts have recognized the inadequacy of the strict application of the “but for” test of causation applied to cases of informed consent.

Chester v. Afsharvi – Issues Of Causation

The House of Lords decision in Chester v. Afsharvi is the leading case that directly confronted the issues of causation in regards to informed consent in medical malpractice. Ms. Chester was referred to a neurosurgeon, Mr. Afshar, due to her reoccurring back pain. He recommended surgery for the removal of three intervertebral disks and was able to schedule the surgery three days after the consultation. Mr. Afshar failed to inform Ms. Chester of the 1-2% chance of injuring the cauda equina which may result in paralysis. Unfortunately, this risk inherent in the procedure materialized through no fault of Mr. Afshar`s surgical technique or competency. Ms. Chester sustained paralysis in her legs which had partially resolved at the time of trial. During trial, Ms. Chester testified that, had she known about the risks of the surgery she would not have proceeded with the operation at that time. Instead, she would have sought at least two additional opinions and conducted research on the surgery. She was unable to testify that she would have absolutely refused to undergo the surgery in the future, but claimed that she would not have undergone the surgery on the specified date three days after the consultation with Mr. Afshar.

The central question was whether the conventional approach to causation (the “but for” test) should be varied where the claim is based on a doctor’s negligent failure to warn a patient of a small but unavoidable risk of surgery when, in competently performing that surgery, that same risk about which the patient was not warned materializes.

Lords Bingham and Hoffmann, in dissent, both recognized that the “but for” test is not the exclusive test for causation. Lord Bingham stated that in very limited circumstances (which, in his view, the case at bar was not one of them) the traditional test for causation should be replaced to achieve just outcomes and provide relief to injured individuals.

Lord Hope, in the majority, stated that causation must be satisfied for policy reasons in order to fulfill the purpose of the duty to obtain informed consent. To do otherwise and submit to traditional forms of causation would “render the duty useless where it may be needed the most ”. He continued by stating
that the purpose of the law is to provide remedies to those whose rights have been breached.

Informed Consent and Other Fairy Stories

Lord Hope at para. 57 stated, “In his article ‘Informed Consent and Other Fairy Stories’ (1999) 7 Med LRev 103 Professor Michael A Jones drew attention to the problems which had been focused in the debate about informed consent that followed the decision of this House in Sidawayvii to prefer what he described, at p 104, as the reasonable doctor standard (the Bolam testviii) in contrast to the prudent patient standard adopted in the American cases, which has been accepted also in Canada. Liability for the non-disclosure of risks is judged by reference to the tort of negligence which looks to the nature of the doctor’s duty and applies the Bolam test to it, rather than the validity of the consent of the patient to what would otherwise be a trespass. There are then two problems that face a patient who brings a
claim for non-disclosure of risk: that of proving breach of duty and that of proving causation. The greater
the difficulties that stand in the way of the patient on these issues, the more difficult it is to say that the law of informed consent works as a means of protecting patient autonomy.”

The High Court of Australia case of Chappel v. Hart 1998ix which has similar facts to Chester was considered at length by the Court. In Chappel, the doctor was found not to have advised his patient of the inherent risks of surgery. That risk materialized despite the competency of the surgeon. Ms. Hart claimed that had she been warned of the risk, she would have postponed the operation and made further enquiries to minimize the risk and perhaps find a more experienced surgeon. The minority of the

High Court of Australia found that, in the absence of causation founded on the ‘but for’ test, the claim must fail. Lord Hope in Chester (at para 73.) stated, “The approach of the minority is strong on logic and, so far as it goes, may be said to be impeccable in its reasoning. It is plain that the ‘but for’ test is not in itself a sufficient test of causation. It is also plain that the requirements of causation would have been satisfied if Mrs. Hart had been able to show that the failure to warn had exposed her to an increased risk of injury or that she would not have had the operation at all if she had been warned of the risk. But if the application of logic is to provide the answer, the consequences for a case where those elements are absent, as they are here, are stark. A duty was owed, the duty was breached and an injury was suffered that lay within the scope of the duty. Yet the patient to whom the duty was owed is left without a remedy.”

The Chester case changed the law in the UK for the benefit not just of the patient, but for the operation of the health service as a whole. In 2004, I was a senior solicitor in a firm representing the National Health Service Litigation Authority (NHSLA). The NHSLA had conduct of all clinical negligence claims against clinicians (physicians, technicians and nurses) and health authorities – Area Health Authorities and Primary Care Trusts across the country. In addition I also represented physicians operating in the private sector. The Chester case was followed through the court system with trepidation by my colleagues and clients alike. When the House of Lords’ decision was published, many of my clients could not understand how they were expected to conduct themselves and stay the right side of the law. The sky had fallen. In fact what has happened, over what is now almost a decade, is that information made available to patients has improved exponentially. It has facilitated a new era of greater respect for the patient and has enhanced the patient-doctor relationship, not diminished it. Far from clouding the standard of care for physicians on the issue of obtaining informed consent, physicians are much clearer on where they stand. The fall-back position previously available to health professionals and their lawyers (to argue the patient would likely have undertaken the procedure in any event) is no longer available to them. Clearer policies and procedures are now in place for the mutual benefit of the clinician and patient. Patients are not rushed into procedures with inadequate time to reflect on their options.

Cojocaru v. British Columbia Women’s Hospital and Health Centre 2013

Cojocaru v. British Columbia Women’s Hospital and Health Centre 2013x is a recent Supreme Court of Canada case which has been a welcome respite from the unrelenting erosion of the patient’s right to informed consent. Ms. Cojocaru was pregnant with her second child. Her first child had been born in her native country of Romania by Caesarian section. The orientation of the uterine scar was not established but assumed (correctly) by the attending obstetrician, Dr. Yue to be a low transverse uterine scar. Dr. Yue also assumed (incorrectly) that the Romanian procedure had been an elective one (which carried an 80% success rate for a trial of labour after Caesarian section (VBAC) rather than as a result of failure to progress (which carries a significantly lower success rate). Ms. Cojocaru’s chart indicated that Dr. Yue discussed the modes of delivery and noted Ms. Cojocaru “wants VBAC”. In a consultation letter written
to the physician who had referred Ms. Cojocaru, Dr. Yue noted the 80% success statistic along with the risk of uterine rupture being 1 in 200. Dr. Yue’s evidence was that while she had no specific recollection of her discussion with Ms. Cojocaru, her ‘invariable routine’ would be to convey these risks to her patient. However, the trial judge’s concern was not that the statistical risks were not discussed, but that “there is no indication that the significance of that statistic was brought home to Ms. Cojocaru ” (para.

93) (my emphasis). In fact, the trial judge concluded that even if Dr. Yue did convey the risk of 1 in 200, this was insufficient to obtain informed consent (para. 107).” Regrettably the 80% success rate and 1 in
200 risk of uterine rupture were incorrect. Therefore it was found that Dr. Yue could not have obtained
informed consent from her patient.

The standard of care of obtaining informed consent has potentially been clarified to include making the significance of the risks understandable to the patient. Alternatively Cojocaru will be distinguished and marginalized on its specific facts. In any event, clarifying the scope of the doctor’s duty will do little to protect the patient’s rights while the doctors can fall back on the “but for” test of causation which is the means by which the vast majority of these cases are defeated.

Conclusion

The law of informed consent in Canada is flawed. It fails to protect what is a basic human right – the right of self-determination and autonomy. A right enshrined within the Charter of Rights and Freedoms. Informed consent is currently a right without substance which is effectively no right at all. The law, as it has developed, has encouraged no more than superficial modifications to the practice of medicine. Informed consent cases do not sit comfortably with the “but for” test of causation which is already recognized as not an exclusive test of causation. The limits of this test have already been recognized by the courts.xi

i Beatty v. Cullingworth, 1896 Br Med J 1986;2:187.1.

ii Canadian Charter of Rights and Freedoms, s 7, Part I of the Consitutation Act, 1982, being Scheudle B to the Canada Act
1982 (UK), 1982, c 11.

iii Non-Marine Underwriters, Lloyd’s London v Scalera 2000 SCC 24 par. 10.

iv Reibl v Hughes [1980] 2 SCR 880. v Dickson v. Pinder 2010 ABQB 269. vi Chester v Afshar [2004] UKHL 41.
vii Sidaway v. Bethlem Royal Hospital Governors (1985) AC 871.

viii Bolam v. Friern Hospital Management Committee (1975) 1 WLR 582

ix Chappel v Hart (1988), 19 CLR 232.

x Cojocaru v British Columbia Women’s Hospital and Health Centre 2013 SCC 30.

xi McGhee v. National Coal Board (1973) 1 WLR 1; Snell v. Farrell (1990) 3 SCR 311; Athey v. Leonati (1996) 3 SCR 458;
Resurface Corp v. Hanke (2007 SCJ No 7; (2007) 279 DLR (4th) 643; Clements v. Clements 2012 SCC 32 (2012) 2 SCR 181. The author would like to acknowledge the assistance of Brandon Souza, Articled Student, in the preparation of this paper.