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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The Chief Medical Officer of Health for Ontario has issued an updated Directive #2 (dated May 26, 2020) for Regulated Health Professionals in the province.
Pursuant to the updated Directive #2, all deferred non-essential and elective services by health care providers may be gradually restarted – subject to the rest of the requirements set out in the Directive.
The updated Directive #2 does not provide particularly detailed guidance to health professionals on how to proceed, likely because it applies to such a broad spectrum of health care and health professionals. It does, however, provide some principles to assist health care providers in making decisions as we enter this transitional period.
In addition to the mask and hand sanitizer shortages, Ontario’s response to COVID-19 highlights the need for more frontline health care workers. Each regulated health profession’s college responded differently, and we have discussed some of those changes in other posts to keep you apprised.
Today, we focus on the College of Physicians and Surgeons of Ontario (CPSO), who set out to increase the number of available and licenced physicians out on the frontlines through certificates of registration that authorize supervised practice of short duration. The temporary licences authorize practice for 30 days.
Undoubtedly, COVID-19 has affected how health professionals practice. Pharmacists across the country are not only experiencing changes in how they practice (for example, accepting emailed prescriptions, where appropriate) but the scope of their practice as well. The latter change is not permanent, although the disruptions in practice may be felt long after the COVID-19 emergency subsides.
On March 19, 2020, Health Canada issued a short-term section 56(1) exemption under the Controlled Drugs and Substances Act (CDSA) that would authorize pharmacists to prescribe, sell, or provide controlled substances in limited circumstances, or transfer prescriptions for controlled substances (the CDSA Exemption).