ABSTRACT
In Canada, the development of the doctrine of informed consent has not been simple or straightforward. Prior to the famous case of Reibl v Hughes in 1980, the Canadian courts have swung in both directions – for and against the objective and subjective approaches (that is, the professional v the patient’s standard) reflected, for instance, in cases like Male v Hopmans (1967) 64 DLR (2d) 105 and Kelly v Hazlett (1976) 75 DLR (3d) 536. The objective test was applied in cases involving misrepresentation of treatment such as Halushka v University of Saskatchewan (1965) 53 DLR (2d) 436, where the patient, a student at the University of Saskatchewan, voluntarily submitted to an experiment, and signed a consent form, to participate, for a fee of $50, in medical research involving a new drug purported to have been used and tested, and which was ‘safe’, but which, in fact, had neither been used nor tested. The plaintiff suffered cardiac arrest which resulted in permanent brain damage. The Saskatchewan Court of Appeals held that the doctor was liable in battery and negligence, holding that: ‘There can be no exceptions to the ordinary requirements of disclosure in the case of research as there may well be in ordinary medical practice … The subject of medical experimentation [that is, the plaintiff in this case] is entitled to full and frank disclosure of all the facts, probabilities and opinions which a reasonable man might be expected to consider before giving his consent.’ Another example of the application of the objective approach can be found in cases where there was no consent to the actual medical operation carried out, but only consent to treatment which was not in fact carried out.
