In our prior blog posts we have discussed informed consent in medical malpractice claims. As established by the Supreme Court of Canada, the key points to informed consent are:
- The doctor must disclose the nature of the treatment, its gravity, and any associated risks that would want to be known by a reasonable patient.
- The physician must inform the patient about the frequency or statistical chance of a material or special risk arising.
- The physician is required to explain the nature and severity of the injury that could ensue.
A patient also has the right to refuse unwanted medical treatment that has been recommended by a doctor. The right to refuse treatment falls under the umbrella of informed consent. This is because the idea of informed consent is to ensure a patient’s freedom of choice and right to self determination to make choices after evaluating the risks and benefits to treatment. The right to refuse treatment is also known as informed refusal, Informed refusal can be considered the opposite of informed consent and it occurs when a patient refuses treatment after being informed of all the facts, recommended treatment, options and risks and there is a refusal to agree to the treatment.
Medical malpractice claims arising from informed refusal have been the subject of numerous news stories over the years.
Wijngaarden v. Tzalis (1992), 60 OAC 236 is an example of informed refusal. In this case, the injured claimant was seriously injured in an accident. She was transported to the hospital where she was given a blood transfusion. Afterwards, a card was discovered in her belongings indicating that she was a Jehovah’s Witness and directing that no blood transfusions were to be administered to her even if they were vital to her health or life. She was in need of further treatment and the treating physician brought an application to declare that this card was not binding on them and that the treating physicians had the right and liberty to administer blood to her in order to preserve her life. The Public Trustee was appointed as litigation guardian for the patient. The Public Trustee provided evidence to the presiding judge that the injured claimant’s conduct since the accident and her interaction with the doctors raised sufficient doubt as to whether her card represented her current wishes that her medical condition had to be considered in addition to the presence of the card. He informed the court that what was known of her wishes led him to take the position that her interest was to receive whatever treatment was necessary to preserve her life, to treat her injuries, to promote her recovery, and, if necessary, that included blood transfusions. The order was granted. Relatives of the injured claimant appealed and sought to overturn or invalidate the order.
The Appeal Court was not provided with all of the materials that were before the presiding judge. The Appeal Court, however, dismissed the appeal stating:
6 Since the evidence before the trial judge was presented viva voce, and transcripts are not yet available, there are no materials before me to indicate what evidence the trial judge found casts doubt on whether the card represented the patient’s present wishes. Counsel informed me that efforts were made, throughout the trial proceedings, to ascertain the patient’s wishes. Her level of sedation was reduced and it appears that she could communicate, often giving appropriate responses, but sometimes appearing not sufficiently competent for her wishes to be correctly interpreted and relied upon. The Public Trustee, with his counsel, was sent to interview the patient but refused to divulge what she communicated to her litigation guardian, if anything. The trial judge ruled that the Public Trustee could not be compelled to reveal such information. The Public Trustee, as litigation guardian for the patient, advises that the position that he took after his retainer, was that her conduct since the accident and her interaction with the doctors raised sufficient doubt as to whether her card represented her current wishes that her medical condition had to be considered in addition to the presence of the card. He informed the trial court that what was known of her wishes led him to take the position that her interest was to receive whatever treatment was necessary to preserve her life, to treat her injuries, to promote her recovery, and, if necessary, that included blood transfusions.
7 I do not take lightly, as it appears the trial judge did not, the patient’s right to refuse treatment, even when faced with life threatening consequences. However, on the materials before me, I am not in a position to substitute my conclusion for his, as to whether the evidence that he has heard, and to which I have no access, is sufficient to cast a doubt on whether the card that Mrs. Gerontzos was carrying in her purse at the time of the accident did not represent her true wishes when the reality of the need for a blood transfusion arose. On the basis of what I have heard from counsel, and of the additional affidavits put before me by the appellant, which were not before the trial judge, it appears that communications with Mrs. Gerontzos were possible but that the determination of whether she wanted to express clear wishes as to receiving blood, and whether she ever succeeded so far in expressing her competent wishes, is a factual matter of considerable difficulty.
8 I am greatly assisted in the determination of whether to stay the order pending appeal by the position that has been taken by the respondent. Not only has the order permitting the blood transfusion not been resorted to so far, but Mr. Underwood undertook that the order would not be used at any time after the patient expressed what, in the opinion of the treating physicians, are her competent wishes not to receive blood.
9 I do not underestimate the potential harm that will be inflicted on her if Mrs. Gerontzos is administered a blood transfusion against her wishes and in contravention of her religious beliefs. On balance, however, I think that I must assume that the trial judge made a correct factual determination, based on the evidence that was before him, and not before me. Adverse as they are, all the parties are solely concerned with the interest of the patient. In the circumstances, that interest is better served by denying the stay.
10 The motion is dismissed.
