HESA 6305 Lecture Notes - Lecture 5: Third Doctor, Reasonable Person
13 Nov 2017
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Document Summary
Lack of informed consent gives rise to a negligence action. In order to exercise their autonomy, patients must have access to critical information about the recommended treatment and any alternatives. Informed consent is a way for the law to correct the asymmetrical distribution of medical information between patients and health practitioners. Consent is an on-going process of communication. Careless failure to disclose information about medical treatment may lead to a finding of medical negligence, but not battery. In the context of negligence arising from a lack of informed consent, the two key elements are the breach of standard of care and causation. Duty to disclose only involves material, special, or unusual risks: courts have taken an expansive or liberal view of the risks that have to be disclosed. The reasonable patient is considered to be one who wants to be very well informed before undergoing treatment: not clear what the difference is between material, special, and unusual risks.
