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Simon Shields, LLB

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Torts - Battery - Consent

Bollman v. Soenen (Ont CA, 2014)

In this medical malpractice case the court reviewed the law of informed consent:
[18] The trial judge’s determination of liability on informed consent was based on a misapprehension of the law. In the context of medical treatment, battery arises when there is no consent at all. An example would be when the wrong operation or procedure was conducted. When there is an allegation of a deficiency in the explanation of risks, the issue is that of informed consent.

[19] This distinction was clarified by the Supreme Court of Canada in Reibl v. Hughes, 1980 CanLII 23 (SCC), [1980] 2 S.C.R. 880. At pp. 890-92, Chief Justice Laskin said:
In my opinion, actions of battery in respect of surgical or other medical treatment should be confined to cases where surgery or treatment has been performed or given to which there has been no consent at all or where, emergency situations aside, surgery or treatment has been performed or given beyond that to which there was consent.

…in my view, unless there has been misrepresentation or fraud to secure consent to the treatment, a failure to disclose the attendant risks, however serious, should go to negligence rather than to battery.
[20] Although the trial judge headed the discussion of informed consent “Battery,” his analysis makes it clear he was speaking of a failure to disclose the risks of surgery. The proper issue is therefore informed consent. Reibl v. Hughes sets out a two-part test for informed consent. The first is subjective; the second is objective.

[21] The subjective test is based on what the particular patient would have agreed to if the risks were known. It will of necessity vary from patient to patient and take into account factors unique to the individual. The objective test is based on what a reasonable person in the respondent’s position would have done. Both the subjective and the objective criteria must be established for the respondent to prove on balance of probabilities that she is entitled to damages for the lack of informed consent.

[22] The subjective test alone cannot be relied upon, for it imports an element of hindsight reasoning. A patient could be inclined to say that he or she would not have undergone the procedure if the risks that in fact materialized and that form the basis of the action had been known. As stated in Reibl v. Hughes, at p. 898:
[T]o apply a subjective test to causation would, correlatively, put a premium on hindsight, even more of a premium than would be put on medical evidence in assessing causation by an objective standard.
[23] The objective test is based on reasonableness, as stated in Reibl v. Hughes, at p. 900:
In short, although account must be taken of a patient’s particular position, a position which will vary with the patient, it must be objectively assessed in terms of reasonableness.

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