It is well known that competent patients must be told about the risks of proposed medical procedures. This paper argues that recent professional guidelines and the law of negligence now take matters further by requiring doctors to take reasonable steps in an attempt to ensure that patients understand the risks they are being invited to run, so facilitating meaningful choices and the opportunity to give a properly informed consent.
The case of Reibl v. Hughes has significantly altered the law regarding informed consent in Canada. It might be expected, therefore, that its impact on the Canadian medical profession would be significant. However, in the first study to examine the practice of Canadian doctors in this respect, Professor Robertson concludes that the profession is largely unaware of either the decision or its importance. Further, the study examines doctors' current perceptions and opinions on the disclosure of risks to patients and the results, among others, raise serious questions regarding both the awareness and reception of important legal rulings.
This paper examines the case for an expanded interpretation of the concept of "material risk" such that it necessitates voluntary disclosure of physician inexperience with a specific medical procedure. Informed consent law in the United States, Canada, and most commonwealth jurisdictions has become a driver of standards of risk disclosure by physicians during the informed consent process. The legal standard of risk disclosure expected of a physician hinges on the interpretation of the entity called "material risk." Any impairment of the physician related to drug usage, disease, or alcohol which compounds the risk of a procedure is very likely to be considered material by a patient. This paper argues that physician inexperience is a factor that a reasonable patient would attach significance to and that it should therefore be viewed as a "material risk" requiring disclosure.
Most of the legal cases that follow the informed-consent standard set in recent court cases have involved surgical procedures. However, issues concerning a pregnant British Columbia mother who contracted chicken pox and whose child was subsequently born with severe medical complications demonstrate the complexity of medical decision making and the inadequacy of established legal requirements, especially when consent has dimensions beyond technical considerations usually associated with medical procedures. The problem physicians face, says lawyer Karen Capen, is to find a way to balance a range of professional responsibilities and the overriding fiduciary obligation to patients in matters associated with informed decision making and consent.