The Right of Informed Choice
Almost everyone undergoes medical treatment at some point in their life, but it’s important to understand that patients don’t have to automatically accept whatever treatment is prescribed for them. They have the right to exercise control over their bodies and make informed decisions about their health.
This applies whenever a patient is examined by a doctor. The patient has a right to a proper examination, a diagnosis, advice, and consultations. If treatment is recommended, the patient must have the nature of the treatment explained, its seriousness, and any “material” or special or unusual risks involved. The courts have ruled this right to information includes “an opportunity to evaluate knowledgeably the options available and the risks attendant upon each.” (Van Mol (GAL) v. Ashmore (1999) BCCA) – i.e. other treatments than the one recommended should be covered.
If the examining doctor believes no treatment is necessary, the right to informed choice may even include knowing what risks there are in not being treated. As the courts have said, “No amount of professional skill can justify the substitution of the will of the surgeon for that of his patient.” (Parmley v. Parmley & Yule, SCC (1945)).
Note that a doctor might justifiably not reveal information about alternative treatments if those options were not reasonable or could be expected to harm the patient.
Once all required information has been provided and discussed, patients may reject treatments or select alternative treatments, even if that involves more risks. Exceptions are noted below.
Capacity to Consent or Refuse Treatment
The right of a patient to decide their treatment is based on the patient’s capacity to make a reasoned decision. If they’re unable to understand they have an illness, or unable to appreciate the consequences of receiving or not receiving treatment, others will have to make the decision for them.
In a recent Supreme Court of Canada decision, Starson v. Swayze, the issue was whether a highly intelligent physicist had the capacity to decide whether to undergo treatment. Professor Starson, who had made death threats to acquaintances and strangers, had refused the medical treatment (medication) proposed by his treating psychiatrist for bipolar disorder. Dr. Starson was willing to undergo psychotherapy, but felt that medication (which he had received previously) dulled his mind and hindered his work.
Those urging medication argued that these medications had improved and that without them Dr. Starson’s condition would deteriorate.
The legislation in Ontario, where Professor Starson lived, was that as long as a person had the capacity to decide his/her treatment, the person’s decision would be respected.
Moreover, the law presumes that an adult is capable. In a 6/3 decision, the Court held that although it may have appeared that Professor Starson did not appreciate the nature of his illness, or the need for treatment, it wasn’t proven that he lacked the ability to assess these issues. Although Professor Starson didn’t consider he had a mental illness, he was aware that his brain did not function normally. The majority also noted that the proposed medication didn’t guarantee improvement of Professor Starson’s state, and that previous medications hadn’t helped. Under the circumstances, they did not find that Professor Starson had failed to appreciate the consequences of refusing treatment (possibly because these consequences had never been fully explained to him.)
The Court noted that “The right knowingly to be foolish is not unimportant; the right to voluntarily assume risks is to be respected. The State has no business meddling with either. The dignity of the individual is at stake.”
Status of Minors
If a young person has sufficient maturity and intelligence and is capable of understanding what is involved in making an informed choice about proposed medical treatment, they are entitled to legally consent to that treatment, without the consent of their legal guardian. This position, developed by the English courts back in the 1800’s has been codified, with some fine tuning, by legislation. Now, section 17 of the B.C. Infants Act provides that an “infant” (person under the age of 19) may provide consent to medical treatment as long as:
1) it has been ascertained that the treatment has been explained to the young person,
2) he/she understands what the treatment is for, and
3) it is in the young person’s best interest to undergo the proposed treatment.
In a recent B.C. case involving an intelligent 16- year-old girl who underwent major surgery and ended up paraplegic, the courts held that the young woman’s treating doctors were negligent in not explaining and allowing her to choose to have additional protection (in the form of a bypass machine) in place which would likely have prevented the paraplegia.
In B.C. the Representation Act allows individuals to prepare a representation agreement (sometimes referred to as a “living will”) when they are still capable of managing their affairs. The agreement can say what decisions should be made about them by a designated “representative” if/when they lose their capacity to make rational decisions. The agreement can be ended if the person changes the agreement, dies, or a court orders it to end.
Because of the vulnerability of individuals who are incapable of making decisions, the Public Guardian and Trustee is authorized to conduct an investigation if “any person” objects to any decision made by the person’s representative, or if the person’s representative appears to be abusing or neglecting his/her responsibilities.
Excerpt from “ACCESS TO JUSTICE: Legal issues for the injured and people with disabilities,” written and produced by Faith Hayman, Barrister and Solicitor.
This is for informational purposes only and its contents are not intended nor should be considered to be legal advice.
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