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Population Health Ethical Legal And Organizational Aspects Of Medicine PheloMedical LawConsent

Consent in Canadian Medical Practice

For MCCQE1 preparation, understanding Consent is fundamental to the Ethical, Legal, and Organizational Aspects of Medicine (PHELO) category. In Canadian medical law, treating a patient without valid consent constitutes battery, while obtaining consent based on inadequate information constitutes negligence.

The Medical Council of Canada (MCC) expects candidates to demonstrate a sophisticated understanding of informed consent, capacity assessment, and substitute decision-making within the CanMEDS Communicator and Professional roles.

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Canadian Context: Unlike some jurisdictions that use a “professional standard” (what a doctor thinks is important), Canada uses a “reasonable patient” standard. You must disclose what a reasonable person in the patient’s specific position would want to know.

For consent to be legally valid in Canada, it must meet specific criteria. These are high-yield concepts for the MCCQE1.

The patient must have the capacity to make the decision. This means they must be able to understand the information provided and appreciate the consequences of their decision (reasonably foreseeability).
  • Express Consent: Explicit verbal or written agreement. Required for surgical procedures, anesthesia, and invasive investigations.
  • Implied Consent: Inferred from the patient’s actions or the circumstances (e.g., a patient rolling up their sleeve for a blood pressure check).

The Canadian Standard of Disclosure: Reibl v. Hughes

To ace the MCCQE1, you must understand the legal precedent set by the Supreme Court of Canada in Reibl v. Hughes (1980).

The Modified Objective Test

The Supreme Court established that a physician must disclose what a reasonable person in the patient’s particular position would want to know. This includes:

  • Material risks (common risks with minor consequences OR rare risks with severe consequences).
  • Special risks relevant to the patient’s specific job, hobbies, or lifestyle.

What Must Be Disclosed?

When obtaining informed consent, ensure you cover the following (Mnemonic: BRAID):

B - Benefits of the intervention
R - Risks (Material and Special)
A - Alternatives (including doing nothing)
I - Indications (Why are we doing this?)
D - Documentation (Record the discussion)

Capacity and Competence

Capacity is a clinical determination made by the physician, whereas Competence is a legal status determined by a court. In the MCCQE1 context, you are assessing Capacity.

Key Principles of Capacity

  1. Presumption of Capacity: Adults are presumed capable unless there is evidence to the contrary.
  2. Task-Specific: A patient may be capable of consenting to a blood draw but not to complex neurosurgery.
  3. Time-Specific: Capacity can fluctuate (e.g., delirium, sundowning). You must assess capacity at the time the decision is required.

Step 1: Assess Understanding

Ask the patient to repeat back the medical condition and the proposed treatment in their own words.

  • “Can you tell me what problem we are treating?”

Step 2: Assess Appreciation

Ask the patient to explain how the treatment (or refusal) will affect them personally.

  • “What do you think will happen to you if you don’t have this surgery?”

Step 3: Assess Reasoning

Ensure the patient is using a logical train of thought to reach their decision, not driven by delusions or hallucinations.

Special Situations in Canadian Practice

1. Minors and the “Mature Minor” Doctrine

In Canada (outside of Quebec), there is no fixed age of consent for medical treatment. Competence is determined by maturity and understanding, not chronological age.

  • Common Law Provinces: A minor can consent if they understand the nature and consequences of the treatment (Mature Minor Rule).
  • Quebec: The age of consent is generally 14 years for care required by the state of health.
FeatureCommon Law ProvincesQuebec (Civil Code)
Age of ConsentNone (Case-by-case basis)14 years (generally)
Parental NotificationNot required if mature minorNot required if >14
Refusal of Life-Saving TxCourts may interveneCourt intervention likely required

2. Emergency Situations

Consent is not required if:

  1. There is an immediate threat to life or limb.
  2. The patient is incapable of consenting (unconscious, delirious).
  3. No substitute decision-maker is immediately available.
  4. There is no prior directive refusing such treatment.
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Crucial Distinction: If a competent patient refuses life-saving treatment (e.g., a Jehovah’s Witness refusing blood), you cannot treat, even in an emergency. If the patient is unconscious but has a valid, accessible Advance Directive refusing the treatment, you must respect it.

3. Substitute Decision Makers (SDM)

If a patient lacks capacity, you must seek consent from an SDM. The hierarchy varies by province, but generally follows this order:

  1. Guardian appointed by the court.
  2. Attorney for personal care (Power of Attorney).
  3. Representative appointed by a Consent and Capacity Board.
  4. Spouse or Partner.
  5. Parents or Children.
  6. Siblings.
  7. Other relatives.
  8. Public Guardian and Trustee (Last resort).

Key Points to Remember for MCCQE1

  • Capacity is clinical; Competence is legal.
  • Refusal: A capable patient can refuse any treatment, even if it leads to death.
  • Withdrawal: A patient can withdraw consent at any time.
  • Documentation: “Consent obtained” is insufficient. Document the discussion of risks, benefits, and questions answered.
  • Language Barriers: Use a professional interpreter. Family members should be avoided if possible to ensure neutrality and accuracy.
  • Battery vs. Negligence: Treating without any consent is battery. Treating with insufficient information is negligence.

Study Checklist

  • Review the Reibl v. Hughes standard.
  • Understand the hierarchy of Substitute Decision Makers.
  • Practice explaining “Material Risks” vs. “Special Risks”.
  • Review the age of consent rules for Quebec vs. Rest of Canada.

Sample Question

Clinical Scenario

A 15-year-old female presents to her family physician requesting oral contraceptive pills (OCPs). She is sexually active with one partner. She appears intelligent, answers questions regarding her medical history appropriately, and understands the risks and benefits of taking OCPs, including the small risk of thromboembolism. She explicitly requests that her parents not be informed, as they are strict and would forbid it. She has no significant past medical history.

Which one of the following is the most appropriate course of action?

  • A. Refuse to prescribe OCPs until parental consent is obtained.
  • B. Prescribe OCPs but inform the parents due to her age.
  • C. Prescribe OCPs without parental notification.
  • D. Refer the patient to a gynecologist for a second opinion regarding capacity.
  • E. Encourage abstinence as the only method of contraception for a minor.

Explanation

The correct answer is:

  • C. Prescribe OCPs without parental notification.

Detailed Explanation: This question tests the concept of the “Mature Minor” doctrine in Canadian medical law.

  • C is correct: In Canada (outside of Quebec, where the age is 14), there is no arbitrary age of consent for medical treatment. If a minor demonstrates the capacity to understand the nature, risks, benefits, and consequences of the treatment (is a “mature minor”), they can provide valid consent. The physician has a duty of confidentiality to the mature minor, just as they would to an adult. Breaching this confidentiality by informing parents without consent would be a violation of professional and legal standards.
  • A is incorrect: Parental consent is not required if the minor is assessed to be capable (mature).
  • B is incorrect: This violates patient confidentiality. A mature minor has the right to privacy.
  • D is incorrect: While a referral is an option for complex medical issues, it is unnecessary for a routine capacity assessment and prescription of contraception in primary care. The family physician is expected to assess capacity.
  • E is incorrect: While counseling on safe sex practices is part of the visit, refusing to prescribe contraception and only suggesting abstinence imposes personal values and ignores the patient’s request and medical needs.

Canadian Guidelines & Resources

  • Canadian Medical Protective Association (CMPA): The primary source for medico-legal advice in Canada. Their “Consent: A guide for Canadian physicians” is essential reading.
  • College of Physicians and Surgeons (Provincial): Each provincial college (e.g., CPSO in Ontario) has specific policies on Consent to Treatment.
  • CanMEDS Framework: Specifically the Communicator (engaging in shared decision-making) and Professional (adhering to ethical/legal codes) roles.

References

  1. Canadian Medical Protective Association. (n.d.). Consent: A guide for Canadian physicians. Retrieved from CMPA-ACPM.ca 
  2. Reibl v. Hughes, [1980] 2 S.C.R. 880. Supreme Court of Canada.
  3. Royal College of Physicians and Surgeons of Canada. (2015). CanMEDS 2015 Physician Competency Framework.
  4. Medical Council of Canada. (n.d.). MCCQE Part I Objectives: Legal, Ethical and Organizational Aspects of Medicine.
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