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Law 3101A/B Study Guide - Midterm Guide: Cerebral Palsy, Involuntary Euthanasia, Vancouver General Hospital


Department
Law
Course Code
Law 3101A/B
Professor
Robert Solomon
Study Guide
Midterm

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Ch 4 - Factors negating consent + treatment w/o consent +end of life decision making
Overview:
Part 1: Factors Negating Consent
Part 2: Treatment Without Consent
Part 3: End-of-Life Decision Making
*Factors negating the plaintiff’s consent: first u have to establish that there was valid consent in
the 1st place. If the plaintiff has given a valid consent, in what circumstances is it negated? I.e as
if there was no consent at all.
* Treatment Without Consent: In what circumstances can u be detained for treatment without ur
consent when u are capable
*End of Life decision making: The key is to clearly define the issue
Part 1: Factors Negating Consent
Once a patient provides an otherwise valid consent, it must be determined if any factors
would negate the consent.
If the consent is negated, the situation will be treated as if there was no consent at all.
The courts have recognized four factors that will negate consent, but traditionally defined
them narrowly.
4 factors:
1) Mistake
2) Fraud
3) Duress
4) Public policy
-1st 3 factors have been influenced by the criminal law cases
A) Mistake
oIf a patient consents to treatment based on a mistaken belief that a practitioner
(defendant) is responsible for creating, the consent will be negated.
oOnly applies to circumstances when ur consent is CREATED BY SOMEONE
ELSE (NB: differentiate a situation where the HC mistakenly believes there was
consent..not the same circumstance)
B) Fraud (deceit)
oFraud includes knowingly making a false statement, making a statement in total
disregard as to its truth, or knowingly creating a misleading impression by
omitting relevant information.
oIf a patient consents to treatment based on a fraudulent belief that a practitioner
was responsible for creating, or was aware of, the consent may be negated.
oConsent will only be negated if the fraud went to the nature of the act, and not a
collateral matter. Similarly, until recently, fraud as to the harmful consequences
of the act would not negate consent.
oIn R. v. Mabior, the SCC held that fraud as to the possible harmful
consequences of an act will negate consent if the fraud resulted in physical

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harm to the complainant or exposed him or her to a significant risk of serious
bodily harm. i.e must be realistic possibility of transmission
oNB!! Plaintiff gives a valid consent to the act giving rise to the tort based on
fraud: involves knowingly misleading i.e. lying. Acting in blind indifference as to
the truth, creating a misleading image in the mind of the plaintiff , knowingly
omitting relevant info à all constitutes fraud as well.
oWhere is the dividing line btwn being wrong and blind indifference? It’s a
continuum and will be determined on a case by case basis. Some uncertainty in
the law, depends on facts of the case.
oNegated if u created the fraudulent belief or were aware of it
o The fraudulence must relate to the nature of the act as opposed to a collateral
manner
oR v Mabior: Realistic possibility of transmission in any circumstance -à If HIV
positive AND have a low viral load AND don’t wear a condom
C) Duress (compulsion or coercion).
oTraditionally, duress has been defined narrowly in terms as a threat of
immediate physical harm.
oThe fact that a patient only reluctantly consents to treatment to avoid being fired,
expelled from school or charged with breaching probation does not constitute
duress.
oNB!! *Duress- cir of an immediate threat of bodily harm. So, “if u don’t go to
alcohol treatment I will fire you/leave you” or if it’s a term/condition of ur
probation ß not duress
D) Public policy.
oThe Canadian courts have recognized that consent may be negated if it would be
“unfair” or unconscionable to allow the defendant to raise the defence, or if the
consent was obtained by exploiting a relationship of trust.
oNorberg v. Wynrib. pg 43
- An elderly doctor offered to continue a patient's prescription for narcotics if she
submitted to his sexual advances
-She agreed reluctantly but when she recovered from her addiction she sued the
doc for battery, negligence and breach of fiduciary duty.
-The SCC upheld her claim; said it was impossible for her to give meaningful
consent given the parties' unequal power and the exploitive relationship; awarded
her 20,000 in comp damages, 10,000 in punitive.
-One justice disagreed; held that the woman's consent to sexual advances was
not vitiated; however, he held doc liable in neg for breaching the standard of care
by facilitating her continued addiction.
-Two remaining judges based doc's liability on an independent action for breach
of fid duty to patient. (to them, the wrong in this case was the doc's exploitation of
his rship of trust w patient to gratify his sexual needs at her expense)

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Part 2: Treatment Without Consent
oCompetent individuals generally cannot be treated without their consent, whether
they are young, elderly, mentally ill, a suspect, prisoner, parolee, or involuntarily-
detained psychiatric patient.
oThis principle applies regardless of the wisdom or consequences of the
individual’s decision.
oWinnipeg Child and Family Services (Northwest Area) v. G.(D.F.).
oSeveral statutes authorize the detention of competent individuals without their
consent, but few authorize medical intervention or treatment without consent.
(a) Federal Law
oThe Criminal Code permits:
otaking blood samples from unconscious impaired driving suspects in cases
involving death or bodily injury; and
otaking blood, hair or saliva samples for DNA testing from suspects charged
with specified sexual and other designated offences.
oQuarantine Act:
omay require travellers to be detained, medically examined and treated
without consent in order to prevent the introduction or spread of a
communicable disease.
otravellers are defined as individuals who are arriving in or departing from
Canada
(b) Provincial Law
oHealth Protection and Promotion Act :
oUnder HPPA, a medical officer of health (MOH) may order a person to
submit to an examination and/or treatment for a communicable disease
(eg hepatitis, AIDS, malaria, tuberculosis etc) or order the person to refrain
from specified conduct (eg u have HIV and they refrain u from sex).
oIn the case of violating an order regarding a communicable disease –->
only fined
oIf u violate the order regarding virulent disease---> the MOH can go to
court and the court can issue an order for ur apprehension, detention and
treatment w/o ur consent (against ur will) for up to 6 months
oImmunization of School Pupils Act :
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