Medical Malpractice

What Constitutes Informed Consent When It Comes To Medical Malpractice?

Written on behalf of Cuming & Gillespie LLP Published on December 22, 2022
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With certain exceptions, medical professionals need to obtain informed consent from a patient before embarking on a procedure or treatment. Patient consent is only informed if the doctor provides certain information so they can effectively decide whether to receive the treatment.  

This article looks at what informed consent means in a medical context, along with possible implications if informed consent is not obtained by a medical professional before proceeding with a procedure or treatment. Failure to obtain informed consent can be grounds for a medical malpractice claim. 

Doctors and healthcare professionals have a legal requirement to obtain informed consent before proceeding with any treatment. Put simply; they need to give the patient enough information to enable the patient to make a decision regarding whether to undergo the procedure. This information needs to be provided using language and in a way appropriate to the patient. 

The courts have held that this requirement includes a duty on the part of the doctor to disclose material risks and answer any questions posed by the patient. Whether a risk constitutes a material risk depends on both the probability that it will occur and the seriousness of the potential injury. For example, a risk with a low possibility of occurrence could still be material if its occurrence would result in serious consequences, such as paralysis or death.

The duty also requires the medical professional to inform the patient of the risks of the treatment and alternative treatments if they would offer some benefit. 

The College of Physicians and Surgeons of Alberta (CPSA) provides a range of information on the requirement to obtain informed consent. 

For example, the CPSA advice on informed consent for adults recognizes that:

  • all interactions with patients require consent, although in some situations, consent will be implied;
  • consent must be given free of coercion to constitute informed consent; and
  • best practice when conducting an examination includes offering “a running commentary” of the exam, including explaining why each step is necessary.

Some exceptions exist for a medical professional to obtain consent from a particular patient before treatment. A non-exhaustive list of exceptions includes:

  • the duty of doctors to treat an incapacitated patient in an emergency, in circumstances where an alternate decision-maker is not available;
  • the requirement to seek the informed consent of a legal guardian in respect of treatment for a minor; and
  • the requirement to obtain informed consent from the patient’s guardian or substitute decision-maker, if the patient does not possess the capacity to give informed consent.

A patient who believes their doctor has not obtained informed consent can file a written complaint with the CPSA. The complaints process is governed by the Health Professions Act. 

A complaint may be dismissed if there is insufficient evidence. Complaints may be investigated and subject to a hearing or resolved with consent. The CPSA can force the doctor to implement practice changes, activities or restrictions to improve their practice if necessary. The CPSA may also take disciplinary action against the doctor but cannot award financial compensation to complainants.

Failure to obtain informed consent may provide grounds for a medical malpractice claim. This most commonly arises when a patient has been injured after being treated. In addition to claiming that the doctor was negligent in performing the procedure (by arguing that the medical professional did not meet the standard of care expected of them and this caused the injury sustained), the patient may also argue a lack of informed consent as a separate ground. 

In order to establish the cause of action of failure to obtain informed consent, the courts have held that patient needs to prove a number of things. Firstly, the patient needs to show that the doctor failed to disclose the nature of the treatment or procedure or its material risks, so they were uninformed. 

Secondly, the patient needs to prove that they would not have undergone the treatment in question if they had been properly informed. This involves both a subjective and an objective element. It needs to be shown that the patient would not have gone through with the treatment if the doctor had properly informed them of the risks. The patient also needs to prove that a reasonable person in their position also would not have proceeded if fully informed of the material risks. 

A successful medical malpractice claim before the courts, or a negotiated settlement, is likely to result in compensation to assist the injured patient in recovering financially. For example, courts in medical malpractice claims may award damages for things including pain and suffering (general damages), income loss, out-of-pocket expenses and the cost of future care.

Suppose you are concerned about the adequacy of information provided before undergoing a medical procedure or treatment. In that case, the medical negligence lawyers at Cuming & Gillespie LLP in Calgary stand ready to support and guide you through the process. We have pursued successful claims where our clients did not receive all the information necessary to make an informed decision and were subsequently injured, so we have the experience to assess your claim effectively. Please call us today at 403-571-0555 or contact us online to book an appointment for a free consultation.