We have previously written about the concept of informed consent in health law. In that post, we discussed the Supreme Court of Canada’s (SCC) decision in Reibl v. Hughes (1980) which established a hybrid test for causation in informed consent as follows:
I think it is the safer course on the issue of causation to consider objectively how far the balance in the risks of surgery or no surgery is in favour of undergoing surgery. The failure of proper disclosure pro and con becomes therefore very material and so too are any special considerations affecting the particular patient.
Seventeen years later the SCC was again called upon to again deal with causation in informed consent in the case of Arndt v. Smith (1997). The case had to consider the test to be used when determining causation in conjunction with the concept of informed consent between a pregnant patient and her physician.
A pregnant woman contracted chickenpox. She carried the fetus to birth. Unfortunately, the child was born with congenital injuries due to the disease. She sued her physician for the failure to advise her of the risk her chickenpox posed to the child and the costs she faced to care for her child going forward. She lost at trial, was given a new trial by the Ontario Court of Appeal (ONCA) and lost on appeal to the SCC.
The SCC had recently reviewed the modified objective test in Hollis v. Dow Corning Corp. (1995). The majority there held that a subjective test was appropriate for an action against a manufacturer of breast implants when determining whether the failure to warn of the risks associated with the implants caused the harm. However, the SCC also continued to unanimously support the continuing application of the modified objective standard in negligence actions between a doctor and patient.
Returning to Reibl, the SCC made clear that it is the leading authority. The patient’s right to be informed of all potential risks associated with their healthcare decisions ensures that patients will have the benefit of a high standard of disclosure. At the same time, the modified objective test for causation ensures that our medical system will have some protection in the face of liability claims from patients influenced by unreasonable fears and beliefs, while still accommodating all the reasonable individual concerns and circumstances of plaintiffs.
Turning now to this appeal, it is appropriate to infer from the evidence that a reasonable person in the plaintiff’s position would not have decided to terminate her pregnancy in the face of the very small increased risk to the fetus posed by her exposure to the virus which causes chickenpox. In the absence of a specific and clearly expressed concern, there was nothing to indicate to the doctor that the patient had a particular concern in this regard. Further, factors such as the plaintiff’s desire for children and her suspicion of the mainstream medical profession were taken into consideration when determining what a reasonable person in the plaintiff’s position would have done if informed of the risks.
The evidence suggested that the mother would have had to seek approval from a committee to go forward with abortion since she was in her second trimester at the time she contracted chickenpox. Given the low risk posed to the fetus, it was unlikely she would have been granted the right to move forward with terminating the pregnancy.
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In December 2019, Ontario’s Attorney General introduced Bill 161, the Smarter and Stronger Justice Act (the “Act”), which became law on July 8, 2020. The Act hopes to simplify a complex and outdated justice system by bringing changes to how legal aid services are delivered, how class actions are handled, and how court processes are administered.
Of note, the Act has amended the Judicial Review Procedures Act (JRPA) to establish new rules as to when an application for judicial review may be brought.
Any decisions made on or after July 8, 2020 are now subject to a 30-day limit for bringing an application for judicial review unless another Act provides otherwise. Courts, however, retain powers to extend the time for making an application for judicial review if satisfied that there are apparent grounds for relief and that no prejudice or hardship will be incurred by the delay. Before these amendments, the JRPA did not set out any time limits for bringing an application, but courts had powers to extend the time to bring an application if another Act prescribed the limit.
In early August 2020, the Federal Minister of Health granted an exemption under the Controlled Drugs and Substances Act (CDSA) to four terminally ill Canadians to use psilocybin in their end of life care.
Psilocybin is one of the active ingredients/chemicals in “magic mushrooms,” the other is psilocin. Both psilocybin and psilocin are controlled substances under Schedule III of the CDSA. The sale, possession, production, etc. are prohibited unless authorized for clinical trial or research purposes under Part J of the Food and Drug Regulations. Both have been illegal in Canada since 1974. According to Health Canada, there are no approved therapeutic products containing psilocybin in Canada. However, the purified active ingredient, i.e. psilocybin, is being studied in supervised clinical settings for its potential to treat various conditions such as anxiety and depression.