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: