Reasonable Informed Consent

In the medical context and as the law on consent to medical treatment has evolved, it has become a basic accepted principle that “every human being of adult years and of sound mind has the right to determine what shall be done with his or her own body.” Clearly physicians may do nothing to or for a patient without valid consent. This principle is applicable not only to surgical operations but also to all forms of medical treatment and to diagnostic procedures that involve intentional interference with the person.

The obligation to obtain informed consent must always rest with the physician who is to carry out the treatment or investigative procedure. This obligation may be delegated in appropriate circumstances (to a trainee for example) but before assigning this duty to another, the treating physician should be confident the delegate has the knowledge and experience to provide adequate explanations to the patient. The physician or delegate must advise the patient of the nature, risks, and benefits of the procedure, as well as provide information that a “reasonable person” would want to know before proceeding with the medical procedure. A consent form is typically given to the patient for his or her signature.

In addition to disclosing material risks, courts have held recently that physicians also owe a duty to their patients to disclose all other material information respecting the surgery, such as the availability of alternative treatments to the surgery, which is being proposed, or an explanation of any surgical devices or techniques.

To be successful in a medical malpractice claim, a patient must establish that had a reasonable person been properly informed of the material risks and information, that he or she would not have consented to the procedure. The issue of lack of informed consent is usually stronger in elective surgeries versus emergency surgeries.

Given the law of informed consent, a patient should not hesitate in asking questions of the physician to ensure that he or she has all the material information necessary to provide informed consent.