In summary, the decided cases appear to indicate that, in obtaining the consent of a patient for the performance upon him of a surgical operation, a surgeon, generally, should answer any specific questions posed by the patient as to the risks involved and should, without being questioned, disclose to him the nature of the proposed operation, its gravity, any material risks and any special or unusual risks attendant upon the performance of the operation. However, having said that, it should be added that the scope of the duty of disclosure and whether or not it has been breached are matters which must be decided in relation to the circumstances of each particular case.In that case, the patient was unsuccessful in his claim in negligence for the surgical technique. He also asserted a claim for the failure of the surgeon to provide an informed consent. The concept of such a duty was affirmed by the SCC, but the patient was unsuccessful in establishing a breach of the duty. The duty was further clarified by the SCC in Reibl v Hughes. In that case, the patient suffered a stroke following the operation which was a known possible risk. He became partially paralyzed and could not return to his work. As a result, he could not qualify for an employee pension benefit which would not have vested for another 18 months. Here the patient was not informed of the risk of stroke despite asking about its possibility but rather was told that without the surgery he would more likely suffer a stroke. The SCC found this to be a breach of the duty holding that:
...even if a certain risk is a mere possibility which ordinarily need not be disclosed, yet where its occurrence carries serious consequences, as for example paralysis or even death, it should be regarded as a material risk requiring disclosure.
What constitutes a special, material or unusual risk will depend on the particular facts of the case. A mere possibility will be included as a material risk if the occurrence of that mere possibility is serious, for example, if it can result in paralysis or death; and, Material risks include those risks which the doctor knows, or ought to know, that a reasonable person in the patient's position would consider in deciding whether to undergo a procedure or treatment.
As of July 1, 2021, all Ontario long-term care homes must implement COVID-19 immunization policies for their staff, students, and volunteers — regardless of the frequency or duration of these individuals’ attendance in a home. Current staff, students, and volunteers will have until July 31, 2021 to meet the policy requirements, subject to reasonable extension for unforeseen circumstances. Newly hired individuals will have 30 days from the first day they begin attending at the home.
It is no surprise that the COVID-19 pandemic continues to affect the delivery of health services and the regulation of various health professions.
In a welcomed move, the College of Physicians and Surgeons of Ontario (CPSO) Council recently approved a new registration policy allowing the Registration Committee to issue a Certificate of Registration authorizing Independent Practice to applicants who have not completed Part II of the Medical Council of Canada Qualifying Examination (MCCQE).
The test for the standard of care in medical negligence cases has remained untouched since the Supreme Court of Canada’s 1995 decision in ter Neuzen v. Korn.
On January 18, 2021, the Supreme Court of Canada heard the appeal in Armstrong v. Ward. Their unanimous decision maintains the status quo with respect to the standard of care in medical negligence cases.