Scope of Obligations Inherent in Medical Contract

Obligation to inform the patient and obtain consent

Under review

In Québec, the principle of the patient’s voluntary and informed consent to receive care is well recognized in jurisprudence and in the Charter of Human Rights and Freedoms, the Civil Code and the Code of ethics of physicians. Obviously, the consent will be voluntary and informed in as much as the patient receives sufficient, appropriate information on his or her  condition, possible treatments and their respective risks. The Code of ethics is particularly clear in this regard:

“A physician must, except in an emergency, obtain voluntary and informed consent from the patient or his legal representative before undertaking an examination, investigation, treatment or research.” (sec. 28).

“A physician must ensure that the patient or his legal representative receives explanations pertinent to his understanding of the nature, purpose and  possible consequences of the examination, investigation, treatment or research which he plans to carry out. He must facilitate the patient’s decision-making and respect it.” (sec. 29).

Jurisprudence also recognizes the principle whereby good medical practice implies communicating the necessary information, not only at the start of the relationship but throughout the follow-up period. The  Code of ethics  reinforces this requirement for transparency by obliging physicians to inform their patients of any incident that could have a significant effect on their state of health:

“A physician must, as soon as possible, inform his patient or the latter's legal representative of an accident or complication which is likely to have or which has had a significant impact on his state of health or personal integrity.” (sec. 56).

The Code of ethics reiterates this obligation, already recognized in jurisprudence, as is illustrated by a judgment of the Superior Court rendered in 1992. A surgeon had performed a mastectomy on the strength of a report stating the presence of an infiltrative canalicular epithelioma. After the operation, it proved to be a granulomatous mastitis. The surgeon was judged liable, not for the error in diagnosis and treatment, but for having left the patient in ignorance  of the second diagnosis and in fear of a recurrence of her cancer for over five years Nikkel c. Danais et de Foiard Brown, CSQ 200-5-002046-881.

This example shows the distinction to be made between error and fault. In this case, it was a diagnostic error: the first examinations strongly suggested a diagnosis of cancer, whereas subsequent examinations ruled it out. But this error does not necessarily constitute a fault. The fault lies in that the physician did not respect the standard whereby the patient should have been informed of the new diagnosis. Patients, like the law, can accept that the physician can make a mistake, but they certainly will not accept being deceived.