1056
McGILL LAW JOURNAL
[Vol. 26
Legislating for an Informed Consent to Medical Treatment
by Competent Adults
Introduction
Unlike its American counterpart, the Canadian medical pro-
fession has shown admirable restraint in the face of rapid develop-
ment in medical law. Rather than agitate for legislative restriction
of legal obligations, the Canadian medical profession has been con-
tent to trust to judicial development of the legal obligations of the
practice of medicine. The American “malpractice crisis” of the
mid-1970’s induced a flurry of legislative initiatives to clarify the
legal obligations of medical personnel. On the matter of a patient’s
consent to medical treatment,’ some states enacted standards of
information that had already been established in the courts, while
others adopted different standards.
In Ontario the Interministerial Committee on Medical Consent,
which was originally commissioned in 1978 to study consent by
minors and sexual sterilization of the mentally incompetent, publish-
ed an omnibus report on general issues of consent to medical
treatment? It is expected that legislation will be introduced in
some form sometime in 1981 or 1982. The United States has already
had some experience with codification of the principles of consent.
In view of the interest in this issue shown in Ontario, and in view
of recent judicial developments in the area of informed consent in
Canada, it is appropriate to examine the earlier American effort.
The work of the Ontario Interministerial Committee is not the first
provincial incursion into the domain of consent to medical treat-
ment. However, it is the first omnibus attempt. Previous reports
and existing legislation focus on special cases of consent, particularly
consent by those under the age of majority4
I See Annas, Informed Consent (1978) 29 Ann. Rev. Med. 9, 10-1.
2 In 1979 a discussion paper was issued, followed by recommendations and
draft legislation: see Options on Medical Consent (September, 1979) and
Options on Medical Consent – Part 2 (December, 1979), both published by
the Ministry of Health in Ontario.
3 Legislation was not introduced earlier because the Government was under
significant pressure not to proceed with the recommended proposals. This
pressure came primarily from anti-abortion groups concerned with the
provisions regarding consent to health care by minors, and with sexual
sterilization of mental incompetents.
‘See, e.g., provisions concerning consent to treatment by minors in [La]
Loi sur la protection de la santg publique, L.R.Q., c. P-35; Art. 20 of the Civil
19811
COMMENTS – COMMENTAIRES
1057
I. Legislating for informed consent: the American response
American legislation concerning informed consent ranges from
the relatively simple to the remarkably complex. The legislation
purports to speak to the various issues raised by the judicial
doctrine of informed consent. Primary among these is the standard
of disclosure of risks. Not surprisingly, the overwhelming legislative
trend is to establish a professional standard of disclosure. 5 One
suspects that in most cases the intention of the legislature was to
ensure that disclosure of material risks not become a part of the
law of the jurisdiction.0 In at least two states, the legislation rever-
ses a judicially imposed standard requiring disclosure of material
risks7 In one state the legislative standard imposes a broader duty
of disclosure on treating physicians than had the court imposed
professional disclosure rule.8
Code of Quebec; The Infants Act, R.S.B.C. 1979, c. 196; [Alberta] Institute of
Law Research and Reform, Consent of Minors to Medical Treatment (1975);
Law Reform Commission of Saskatchewan, Tentative Proposals for a Consent
of Minors to Health Care Act (1978). See also provisions concerning consent
to special procedures contained in Art. 20 C.C.; The Human Tissue Gift Act,
1971, S.O. 1971, c. 83; The Mental Health Amendment Act, 1978, S.O. 1978,
c. 50, s. 12.
5 See Ludlam, Informed Consent (1978), 41; Armas, supra, note 1. Seidelson
concluded in 1976 that approximately half of the United States had a judi-
cially imposed full disclosure standard, and it seems likely that the primary
impetus behind the legislation is a desire to forestall or deny such a standard:
see Medical Malpractice: Informed Consent Cases in Full Disclosure Jurisdic-
tions (1976)
14 Duquesne L. Rev. 309. See also Ludlam, supra, 42, who
suggests conflicting court decisions as an additional motivating factor.
6The principal cases requiring disclosure of material risks are Cobbs
v. Grant 502 P. 2d 1 (Cal. 1972) and Canterbury v. Spence 464 F. 2d 772 (D.C.
Cir. 1972).
7 .e., New York and Vermont. For New York, see Zeleznik v. Jewish Chronic
Disease Hospital, 366 N.Y.S. 2d 163, 170 (1975): “Risk disclosure is based on
the patient’s right to determine what shall be done with his body …. Such
right should not be at the disposal of the medical community. The physi-
cian’s obligation is to make reasonable disclosure of the available choices
and the potential dangers, and the test of reasonableness is for the jury to
decide. The jury should not be bound by the conclusions of the medical
community … ” (citations omitted). The statute provides that: “Lack of
informed consent means the failure of the person providing the professional
treatment or diagnosis to disclose to the patient such alternatives thereto
and the reasonably foreseeable risks and benefits involved as a reasonable
medical practitioner under similar circumstances would have disclosed … ”
(emphasis added): N.Y. Pub. Health 2805-d (McKinney Supp. 1976); cf.
Small v. Gillord Memorial Hospital 349 A. 2d 703 (Vt 1975) and Vt Stat. Ann.
Tit. 12 1908 (Supp. 1977).
8 Compare Grosjean v. Spencer 140 N.W. 2d 139, 144-5 (Iowa 1966) with Iowa
Code Ann. 147.137 (Supp. 1977).
McGILL LAW JOURNAL
[Vol. 26
The common thrust of the legislation is to define the informa-
tion necessary to an informed consent. If the decreed information is
disclosed, the consent of the patient is then presumed, if the legisla-
tion follows an evidentiary model.9 If the legislation follows a cause
of action model, no action will lie in the face of a valid consent.,
The standard of disclosure varies. Statutory adoption of a pro-
fessional standard of disclosure is most common.11 New York re-
quires the disclosure that “a reasonable medical practitioner under
similar circumstances” would provide. 2 Other states have gone
further, providing legislative validation of a locality rule in the
context of informed consent. Thus the Delaware Code defines an
informed consent as one where the information given was that
“customarily given to patients … by other licensed health care
providers with similar training and/or experience in the same or
similar health care communities”. 13 Adoption of a locality rule seems
particularly inappropriate in the context of informed consent. It
was partly because a professional standard of disclosure is often
a fiction that some courts preferred an objective or full disclosure
standard.14 Other state legislation leaves the standard of disclosure
unclear, perhaps inadvertently. For example, Ohio requires dis-
closure of “the nature and purpose of the procedure or procedures,
and what the procedures are expected to accomplish, together with
the reasonably known risks”.15 Presumably, risks are reasonably
known if other physicians in the same circumstances know or ought
to know of them. If risks are reasonably known, is there discretion
9 This classification is adopted by Ludlam, supra, note 5, 42. For an example
of an evidentiary model, see Iowa Code Ann. 147.137 (Supp. 1977): “A consent
in writing to any medical or surgical procedure or course of procedures in
patient care which meets the requirements of this section shall create a
presumption that informed consent was given.”
1o For an example of a cause of action model, see Delaware Code Ann. Tit.
18 6852 (1976): “No,, recovery of damages based upon a lack of informed
consent shall be allowed in any action for malpractice unless ..
11 See Ludlam, supra, note 5, 47; Annas, supra, note 1.
12N.Y. Pub. Health 2805-d (1976), s. 1.
13 Del. Code Ann. Tit. 18 6852a(2)
(1976); see also Tenn. Code Ann.
23-3414 (Supp. 1976).
-14E.g., Canterbury v. Spence, supra, note 6.
15Ohio Rev. Code Ann., 2317, 54 as am. (emphasis added). Alaska’s
legislation is similarly unclear, requiring disclosure of “common risks and
reasonable alternatives”: Alaska Stat. 09.55.556
(Supp. 1977). What of
common risks and reasonable alternatives ordinarily disclosed by a physi-
cian’s colleagues? Ludlam is apparently of the opinion that this language
establishes a community standard (supra, note 5, 45): see Utah Code Ann.
78-14-5(i)(e) (1977), requiring disclosure of “serious and substantial risks.”
1981]
COMMENTS – COMMENTAIRES
1059
to withhold information, regardless of the actions of one’s col-
leagues? Or does “reasonably known” refer to the risks it is reason-
able for the patient to know, and provide scope for withholding
information in accordance with the practice of one’s colleagues?
Prior to the legislation, the standard of disclosure in Ohio was
an objective or full disclosure standard. 6 Originally, the legislation
required disclosure of an enumerated series of risks only; specifi-
cally death, brain damage, quadriplegia, paraplegia, loss of function
of an organ or limb, and disfiguring scars.’7 This list was a clear re-
treat from the position taken by Ohio courts.’ 8 The 1977 amended
version of the Ohio legislation is equivocal.
The legislative provisions of at least two states, Pennsylvania and
Washington, codify judicially imposed standards requiring disclo-
sure of material risks. The Pennsylvania Health Care Services Mal-
practice Act requires disclosure of “those risks and alternatives to
treatment or diagnosis that a reasonable patient would consider
material to the decision whether or not to undergo treatment or
diagnosis.”” 9 Washington legislation is in virtually the same lan-
guage.20
The legislative models in two other American states are of
interest. Colorado2′ originally required disclosure of the statistical
degree of risk within two per cent. The statistical degree of risk was
to be determined either by reference to “a recognized medical publi-
cation” or by reference to the physician’s personal experience based
on a “substantial number of the same or similar procedures.”‘ 2
A risk of less than two per cent presumably did not need to be
disclosed. Only risk of death and risk of “serious injury” required
disclosure, but “serious injury” was left undefined. Apparently, the
I6See Congrove v. Holmes 308 N.E. 2d 765, 771 (Ohio 1973).
17 Ohio Rev. Code Ann. 2317.54. The legislation also provided for a standard
form consent. Iowa still follows this pattern: Iowa Code Ann. 147.137
(Supp. 1977).
18Supra, note 16.
19 The Health Care Services Malpractice Act of Oct. 15, 1975 No. 111, 103
[1975] Laws of Pa. 297. For judicial application of the same standard, see
Jeffries v. McCague 363 A. 2d 1167 (Pa. 1976).
20 Wash. Rev. Code Ann. 7.70.050(i) (2) (1976), codifying Mason v. Ellsworth
474 P. 2d 909 (Ct App. Wash. 1970).
21 Colo Rev. Stats 13-20-301 (1976), repealed H.B. No. 1106, May 27, 1977.
22 13-20-302(2).
23 Annas, supra, note 1, 12. Case law requires disclosure of a serious
risk the incidence of which is less than two per cent. See Canterbury v.
Spence, supra, note 6, in which it was held that a one per cent risk of
possibility of paralysis from laminectomy must be disclosed.
1060
McGILL LAW JOURNAL
[Vol. 26
legislation was found to be unworkable and within one year it was
repealed. It has not been replaced.2 4
The most ambitious legislative provision concerning information
disclosure for medical consent is that in Texas.2 5 Legislation adopt-
ed in 1977 established a nine-member Texas Medical Disclosure
Panel. Six members of the panel must be licensed to practice
medicine in the state and the others must be licensed to practice
law.26 The legislative mandate of the Panel is to establish two
lists of medical procedures, those requiring disclosure of risks and
those not requiring disclosure. The Panel is to establish the degree
of disclosure required. 7 These lists are to be reviewed annually.28
The Panel has not yet published a list either of procedures requiring
disclosure, or of those requiring no disclosure. In 1978 it published
a tentative list for discussion only, including a tentative standard
form of consent. The legislation establishes a rebuttable presump-
tion of consent to medical care if disclosure has been made in
accordance with the list of risks and hazards provided by the Panel,
or if there has been no disclosure but the procedure is on the
Panel’s non-disclosure list. Where the procedure is on neither list
the standard “otherwise provided by law” applies.29 Here the legisla-
tion states:
In a suit … based on the failure of the physician or health care provider
to disclose or adequately to disclose the risks and hazards involved …
the only theory on which recovery may be obtained is that of negligence
in failing to disclose the risks or h-azards that could have influenced a
reasonable person in making a decision to give or withhold consent.30
This is an ambiguous standard, requiring proof that the failure to
disclose material risks3l was negligent. Reference
to negligence
leaves open the defence that one’s medical colleagues did not dis-
close the risk in question. Alternatively, a court could find that it is
negligent to fail to disclose all material risks. Prior to the legislation,
the standard imposed by Texas courts was a professional standard
of disclosure. 32 The Texas proposal is surely an ambitious one, but
24 Ludlam, supra, note 5, 49.
25 1977 Texas Sess. Law Serv. Ch. 817 6.03-6.07.
26 6.03(c).
2 6.04(b).
28 6.04(d).
29 6.07(2) (b).
30 6.02 (emphasis added).
31The statutory language refers to risks that “could have influenced a
reasonable person”.
32 Wilson v. Scott 412 S.W. 2d 299 (Tex. 1967).
1981]
COMMENTS – COMMENTAIRES
it seems a Herculean task.3 3 It is best understood as legislative ap-
proval of a professional standard of disclosure, combined with a
legislative directive designed to ensure that a reasoned, professional
consensus exists.
Definition of the standard of disclosure is at the centre of all
American legislation concerning informed consent to medical treat-
ment. In addition, many state statutes deal with the other issues
raised by the judicial doctrine of informed consent. A few 4 focus
on the debate over the appropriate cause of action, preferring
negligence. Texas is the most explicit. Any action based on failure
to disclose risks associated with the procedure may be based in
negligence only. Failure to disclose the nature of the procedure
itself appears to fall outside the language of the statute 3 It is not
clear, therefore, that the language of the statute successfully lays the
issue to rest. Presumably, in most states the controversy continues,
except to the extent settled by state courts.
Many statutes codify the common law exceptions or defences to
an action based on failure to obtain an informed consent. Whether
drafted as exceptions or as defences, the list generally includes
emergency, therapeutic privilege or a provision that the risk in
question was a universally understood risk. Certain statutes also
make reference to a clear indication of waiver of disclosure by the
patient. Delaware legislation incorporates all of these:
23 Mr Caroll Gregory of the Texas Department of Health assured
the
author that the task assigned to the Texas Medical Disclosure Panel has
not been abandoned as unworkable. The proposed lists, published in the
Texas Register for discussion-purposes only, make no mention of the statis-
tical incidence of risk. For example the “Procedures Requiring Full Disclo-
sure” list includes an abdominal hysterectomy
(total) under the heading
“Female genital system treatments and procedures”. The listed risks are
i)
difficulty in passing urine, (ii) injury to bladder, (iii) sterility, (iv) injury
to the tube between the kidney and the bladder. Disclosure of sterility is
specifically required. Included on the list of “Procedures Requiring No
Disclosure” is a ligation of the fallopian tubes. This procedure apparently
requires the disclosure of no risks, neither the risk of regeneration of the
fallopian tubes, nor of sterility.
34 See 1977 Texas Sess. Law. Serv. ch. 817 6.03-6.07 and Arizona, Ariz. Rev.
Stat. 12-562(b)
(1976). No “medical malpractice” action may be based on
assault and battery. “Medical malpractice” is defined as including claims
based on the failure to obtain an informed consent. ( 12-561(2)). See Ludlam,
supra, note 5, 47.
35As for example in Schweizer v. Central Hospital (1974) 6 O.R. (2d) 606
(H.C.) where plaintiff consented to a procedure of fusion of the joint of
his toe and a spinal fusion was performed.
McGILL LAW JOURNAL
[Vol. 26
(a) No recovery of damages based upon a lack of informed consent
shall be allowed in any action for malpractice unless:
(1) The injury alleged involved a nonemergency treatment, pro-
cedure or surgery;
(b) In any action for malpractice, in addition to other defenses provided
by law, it shall be a defense … that:
(1) A person of ordinary intelligence and awareness in a position
similar to that of the injured party could reasonably be ex-
pected to appreciate and comprehend hazards inherent in such
treatment;
(2) The injured party assured the health care provider he or she
would undergo the treatment regardless of the risk involved
or that he or she did not want to be given the information or
any part thereof to which he or she could otherwise be entitled;
or
It was reasonable for the health care provider to limit the
extent of his or her disclosures [sic] of the risks of the treat-
ment, procedure or surgery to the injured party because further
disclosure could be expected to affect, adversely and substan.
tially, the injured party’s condition, or the outcome of the
treatment, procedure or surgery 3 6
(3)
The language of the statute as to the emergency exception is less
precise than the common law defence it codifies. Most statutes
waive the requirement of consent where the injury arises out of
emergency treatment. At common law, it is not the emergency
nature of the treatment alone that justifies proceeding without
consent. It is emergency in combination with lack of ability in the
patient to comprehend treatment and its implications, and the un-
availability of a substitute consent. To expect a court to include
these additional criteria in defining emergency treatment is to ask
the court to correct sloppy drafting. Language used by other states
more clearly codifies the common law rule.3 7
Therapeutic privilege, codified at subsection three of the Dela-
ware Code, is available at common law even in those states that
have a judicially imposed standard requiring disclosure of material
36 Del. Code Ann. Tit. 18 6852 (1976): see also Alaska Stat. 09.55.556
(Supp. 1977); New York Pub. Health 2805-d(4)(d, b) (McKinney Supp.
1976); Utah Code Ann. 78-14-15(2)(c, d) (1977); Vermont Stat. Ann. Tit.
12 1909(c)(2), (d) (1977); Penn. Stat. Ann. Tit. 40 1301.103 (Supp. 1977).
37 See, e.g., Washington Rev. Code Ann. 7.70.050(4) (1976): “If a recognized
health care emergency exists and the patient is not legally competent to give
an informed consent and/or a person legally authorized to consent on behalf
of the patient is not readily available, his consent to required treatment
will be implied”. See also Kentucky Rev. Stat. 304A0-320(3) (Supp. 1976);
Pa Stat. Ann. Tit. 40 1301.103; Nev. Rev. Stat. 41A.120 (1975).
19811
COMMENTS – COMMENTAIRES
risks3 8 The codifying language is useful, however, in emphasizing
that disclosure must “substantially” affect the patient’s condition.
Several of the statutes codify the principles of causation applic-
able where informed consent is at issue. The New York State pro-
vision is typical.
[I]t must also be established that a reasonably prudent person in the
patient’s position would not have undergone the treatment or diagnosis
if he had been duly informed and that the lack of informed consent is
a proximate cause of the injury….z9
Even states that judge disclosure according to a professional stan-
dard impose the more onerous objective standard on injured pa-
tients.40 Alaska is apparently the only state that balances a pro-
fessional standard of disclosure with a subjective evaluation of the
patient’s decision had he been properly informed. The plaintiff
must establish that “but for that failure [to disclose] the claimant
would not have consented.” 41 Most state statutes do not deal
specifically with the issue of causation, preferring only to define
the cause of action. In the absence of a specific provision, common
law principles govern.
Finally, several of the statutes deal specifically with the issue of
substituted consent, often summarily. Maine provides that health
care must not be given without the informed consent of “the patient
or the patient’s spouse, parent, guardian, nearest relative or other
person authorized to give consent for the patient”. Ohio refers
to a non-exhaustive list of situations requiring substituted consent,
specifically incompetence, infancy and the effects of drugs or alcohol,
and provides for consent by a person “who has legal authority to
consent … in such circumstance.” 43
Is the American effort to codify the principles of informed con-
sent a useful one? For those state legislatures that want to avoid or
repudiate a court imposed standard of disclosure legislation is the
only means available. Often, however, more care should have gone
38 See Canterbury v. Spence, supra, note 6; Hopp v. Lepp (1980) 112 D.L.R.
(3d) 67 (S.C.C.).
(1976).
30 N.Y. Public Health 2805-d(3)
4 0 See Picard, “The Tempest of Informed Consent” in Klar, Studies in
Canadian Tort Law (1977) and see also Maine Rev. Stat. Tit. 24 2905(a) (cum.
Supp. 1977); Nebraska Rev. Stat. 44-2816 (Cum. Supp. 1976); Vermont Code
Tit. 12 1909 cc) (1977).
41 Alaska Stat. 09.55.556 (Supp. 1977).
42 Maine Rev. Stat. Tit. 24 2905(1) (Cum. Supp. 1977).
43 Ohio Rev. Code Ann. 2317.54(c) (1976) as am. Ohio Code Supp. 2317.54
(1977). See also Delaware Code Ann. Tit. 18 6852(2) (1976); Iowa Code Ann.
147.137 (Supp. 1977); Idaho Code 39-4302 (1976).
McGILL LAW JOURNAL
[Vol. 26
into the drafting of the legislation. The Texas attempt to list the
procedures requiring disclosure and the risks that must be disclos-
ed is perhaps the most interesting, although it is open to any
medical association to undertake the same task without legislative
direction. Such a list, if one could be compiled, would be of per-
suasive value even in jurisdictions having a standard requiring
disclosure of material risks.
II. Legislation for Ontario?
Do the Canadian provinces need similar legislation? The purview
of the Interministerial Report in Ontario is much broader than the
general principles of consent to medical treatment. It extends to
several special cases of consent, including incompetents and child-
ren, and to special procedures such as sterilization and psychosur-
gery. Perhaps with regard to these special cases legislation
is
necessary, but the concern here is with the general case of consent
to treatment only.
The proposed legislation in Ontario is well drafted, in fact better
drafted than the legislation in any of the American states. Had it
been adopted immediately upon release of the final report of the
Interministerial Committee in December, 1979, it would have signi-
ficantly changed the law of Ontario concerning informed consent
to medical treatment. In particular, the draft legislation rejected
a professional standard of disclosure of risks in favour of disclosure
of material risks or those “that a reasonable person would require
in order to make a decision in the circumstances.144 In the interim,
however, judicial development has significantly overtaken the draft
proposal, particularly as to general principles of consent. The
Supreme Court of Canada recently determined that negligence is
usually the appropriate form of action where a failure to obtain
consent is concerned, and the Court has applied an objective stan-
dard to both the physician’s disclosure and to the issue of causa-
tion.45
The draft legislation improves on any of its American counter-
parts in several respects. The definition of an informed consent
requires disclosure of the information “that a reasonable person
would require in order to make a decision in the circumstances” 40
44″Draft Health Care Services Consent Act” published
in Options on
Medical Consent – Part 2, supra, note 2: see s. 4.
45 Hopp v. Lepp, supra, note 38; Reibl v. Hughes (1980) 114 D.L.R. (3d) 1
(S.C.C.).
40S. 4.
19811
COMMENTS – COMMENTAIRES
thus imposing an objective standard of disclosure. The draft pro-
posal is concerned with the nature of the consent, not the cause
of action where consent is not obtained. Therefore, the proposal
deals neither with the appropriate cause of action, nor with the
issue of causation, leaving these to be determined by the courts.
The legislation is useful in specifying that a competent adult may
refuse consent to treatment even where life is threatened,4 7 and in
establishing a clear hierarchy of those who are legally authorized to
give a substituted consent 48 It is important to note that with regard
to consent by competent adult persons the draft proposal makes
little change in the common law.49 The draft proposal defines the
information necessary for an informed consent and provides a de-
finition of the competency necessary to consent. A person is com-
petent if “able to understand and appreciate the nature and con-
sequences of the health care service and able to understand and
appreciate the consequences of giving or withholding the consent.” 50
Several exceptions or defences are specified. Consent is un-
necessary in an emergency. Here the draft proposal adopts the
language of the better American models. Where a person is un-
conscious or incompetent to consent to health care and a delay
would result in “imminent and serious danger” to life, limb or a
vital organ, medical assistance may be given. Section 14 provides
an additional defence, though one that is less successfully con-
ceived. No action for damages shall be brought
(a) on the basis of a lack of valid consent for providing a health care
service in accordance with a consent that the (defendant) had
reasonable cause to believe was a valid consent ….
This section was presumably included to provide a defence of
good faith where the consenting individual was reasonably believed
to be of the age of consent, as defined by the proposal, or com-
petent, when not so in fact. However, it is drafted with sufficient
breadth as to empty the material disclosure rule in section 4 of
47 S. 8(1): “A proposed recipient of a health care service who is mentally
competent to consent to the provision of the health care service has the
authority to give or withhold consent to the provision of the health care
service.” While this is probably the case at common law, the point is not
perfectly clear.
48S. 1(1)(c).
49Before the decisions of the Supreme Court of Canada in Hopp v. Lepp
and Reibl v. Hughes, a professional standard of disclosure was most often
applied: see Rodgers Magnet, Lepp v. Hopp and Reibl v. Hughes: Recent
Developments in the Doctrine of Informed Consent to Medical Treatment
(1980) 14 C.C.L.T. 61.
50S. 3.
1066
McGILL LAW JOURNAL
[Vol. 26
all content. If the physician had reasonable cause to believe that
consent was given, but disclosure consonant with the information a
“reasonable person would require” had not been made, is he ex-
cused from liability? Worse, can the physician show he had reason-
able cause to believe the consent was valid because he had disclos-
ed information in accordance with the practice of his colleagues?
This admittedly aberrant reading of section 14 is exacerbated as
this section speaks of the validity of a consent. While competence
is required for a valid consent, disclosure of information also affects
its validity. A consent based on insufficient information is an invalid
one.51
The strong points of the draft proposal include the definition of
competency, imposition of an objective standard of disclosure, cla-
rification of the right to refuse treatment and of those able to pro-
vide substituted consent. The criteria to be considered by the person
giving a substitute consent are also of great interest. Both the best
interests and the wishes of the patient are to be considered.0
Special provisions with regard to those under the age of majority,
for institutionalized patients and for special procedures are outside
the scope of this short note.
The proposal makes no reference to causation, nor to cause of
action, presumably leaving these to the courts. More significantly,
the proposal makes no reference to therapeutic privilege or specific
waiver. These existing common law defences do not fall within the
section 14 defence of reasonable belief that consent was valid.
Rather, they are situations where a valid consent is absent, but with
justification. Furthermore, the language of the proposal defining a
valid consent is such that the defence of waiver or therapeutic
privilege may be excluded entirely. Whether inadvertent or intend-
ed, exclusion of such defences is inappropriate. Their exclusion
may be a by-product of the fact that the report was originally
envisioned to treat the issue of sexual sterilization of the mentally
retarded but grew to encompass the entire field of medical consent.
Conclusion
Is legislation necessary, or appropriate, on the general question
of consent to medical treatment? In my opinion it is not. The im-
petus to legislation in the United States was the rapid escalation
in insurance premiums, combined with withdrawal of insurance
51 This is the result of reading ss. 2 and 3 in conjunction with s. 14.
52 S. 12.
1981]
COMMENTS – COMMENTAIRES
corporations from the medical malpractice market. Legislation con-
cerning informed consent was part of a general package designed to
reduce the number and size of claims. It is suggested that neither
the American models on informed consent, nor the Ontario model,
succeed in this aim. Lack of consent is still grounds for an action
in damages, as it should be. Nor is the legislative definition any
more precise than the judicial one. In either case a physician must
determine what to disclose in a given situation. It is this task that is
difficult, and here the legislation is of little or no assistance. Finally
there has been no demand for legislation from the medical pro-
fession. Where legislation merely ossifies an existing situation, pro-
vides no saving of cost and is the subject of neither public nor
specialized demand, legal development is best left to the judiciary.
S. Rodgers Magnet*
* Of the Faculty of Law, University of Ottawa.
