The Duty to Inform and Informed Consent

Overview

A physician who treats a patient without first giving that patient the information needed to decide commits a fault (faute), even if the treatment itself is performed flawlessly. The (obligation de renseignement) is the legal expression of the principle that the patient, and no longer the physician, decides what will be done to the patient's body. This note, the eighth in the Medical Liability series, traces the shift from paternalism to autonomy, sets out the competing common-law and civil-law tests for fault and for causation (lien de causalité), and works through the questions that decide most informed-consent claims: who must be informed, how, when, and about what. It closes with the heightened duty for and the four limits on the duty: , waiver, , and known risks.

Learning Objectives

Distinguish the common-law reasonable-patient standard for fault from the civil-law standard of the in the circumstances of the particular patient.
Apply the rational-subjectivity test that Quebec courts use to decide causation in informed-consent claims.
Describe the heightened duty for non-therapeutic care and the limits of emergency, waiver, therapeutic privilege, and known risks.

From Paternalism to Patient Autonomy

The Hippocratic tradition placed decisions in the hands of the physician, who acted for the patient's greater good and had no obligation to inform. Modern law rejects this paternalism. The has become the organizing principle of the law of care: the patient holds the power of decision, and the physician must therefore equip the patient to decide well. In Ciarlariello c. Schacter, [1993] 2 SCR 119, the Supreme Court of Canada stated that the duty of disclosure rests on the concept of individual autonomy. Professor Audrey Ferron Parayre notes that British authorities captured the same idea in the formula "No decision about me, without me." Two common-law decisions of 1980, Hopp c. Lepp, [1980] 2 SCR 192, and Reibl c. Hughes, [1980] 2 SCR 880, affirmed that the patient decides and transformed medical liability in the common-law provinces.

In Quebec the duty is framed by arts. 28, 29, 57, and 59 of the Code de déontologie des médecins, by the Canadian Medical Protective Association guide Considérations pratiques sur le consentement éclairé (May 2006, revised April 2021), which is soft law but guides physicians on what they must say and do, and by the Civil Code of Quebec (Code civil du Québec, CCQ), in particular art. 13 CCQ on emergencies and art. 1474 CCQ on exclusion clauses for bodily injury.

Obstacles to Good Communication

The duty operates within a relationship that is rarely ideal for the transfer of information. On the physician's side: time is short, technical vocabulary obscures meaning, the "therapeutic lie" softens bad news, medical uncertainty means every intervention carries remote risks whose disclosure must be weighed, and the physician's biases may colour what is said. On the patient's side: stress reduces active listening, denial filters out unwelcome information, and comprehension may be limited. The legal question is whether the patient was placed in a position to understand, never simply whether words were spoken.

The Competing Theses on Fault

Common law and civil law assess the fault of non-disclosure from different vantage points.

The Common-Law Approach and the Reasonable Patient

In Reibl c. Hughes, the Supreme Court refused to leave the standard of disclosure to the physician's discretion. Allowing expert medical testimony to determine which risks are material would hand the entire scope of the duty, including whether it was breached, to the medical profession. The question is what the patient has the right to know before accepting or refusing an operation, not whether the physician conformed to professional norms. The test therefore looks through the eyes of the : the duty extends both to what the physician knows or should know that a particular patient considers relevant to the decision, and to the material risks that required medical knowledge allows the physician to identify.

The Civil-Law Approach and the Prudent Physician

Quebec courts assess fault from the physician's side. In Bouchard c. Villeneuve, 1996 CanLII 4619 (QC CS), the parents of a child born with trisomy sued the physician for failing to inform the mother sufficiently to decide whether to undergo amniocentesis. The Superior Court (Cour supérieure) held that it must ask what a physician or specialist of reasonable competence and skill would have done in similar circumstances, and added an essential refinement: there is no typical patient, and the civilian formulation takes into account the elements proper to each patient, such as intelligence, curiosity, questions, nervousness, and state of health, without subjecting the determination of fault to the patient's subjective appreciation.

Sosnowski c. Lussier, 2016 QCCS 1079, applied the same approach to a physician who treated varicose veins without explaining the risks: the question is what a prudent and diligent physician would have communicated, not necessarily what the patient would have wished to know. In M.G. c. Pinsonneault, 2014 QCCS 1222, affirmed 2017 QCCA 607, a forceps delivery that injured the child, Justice Tôth reasoned about fault in a manner that instinctively drew on the common-law focus on the patient. The dominant trend is nonetheless settled: what would a prudent and diligent physician have done in the circumstances proper to that patient? Expert evidence remains relevant.

The Competing Theses on Causation

A fault in the duty to inform does not by itself engage liability; the victim must also prove that the failure caused the injury. The inquiry is counterfactual: had the physician disclosed the risk (of deafness, for example), would the operation still have taken place? If the patient would have consented anyway, the causal link disappears. Where no fault is found, the court does not reach causation.

Subjective, Objective and Modified Objective Tests

Three tests compete:

The subjective test asks what this patient would have decided if properly informed. Its weakness is that the patient, testifying after the injury, will almost always say that consent would have been refused.
The objective test asks what a reasonable person would have decided. Its weakness is that the reasonable person is a construct of the judge, which removes the actual patient from the analysis.
The asks what a reasonable person placed in the patient's situation would have decided.

The common law adopted the third. Reibl c. Hughes held that an objective standard was preferable for causation, while specifying that the patient's particular concerns must have a reasonable basis. Hollis c. Dow Corning Corp., [1995] SCC, revisited the Reibl test and, in the context before it, applied a subjective inquiry into whether the patient would have accepted the surgery had the risks been fully disclosed. Arndt c. Smith, [1997] 2 SCR 539, restored the orthodoxy: the majority applied the modified objective test, which blends objective and subjective factors and asks what the reasonable patient placed in the plaintiff's situation would have done; the minority would have asked what this plaintiff would have done had she been adequately informed of the risk that chickenpox posed to her foetus.

Rational Subjectivity in Quebec

Quebec courts start from the patient. In Dunant c. Chong, EYB 1985-143941 (C.A.), the Quebec Court of Appeal (Cour d'appel) found that the appellant, an intelligent and educated man, must have realized after his physicians' explanations that he had no choice but to undergo the proposed operations, and nothing in the evidence suggested he would have refused had he been better informed.

Parenteau c. Drolet, 1994 CanLII 5444 (QC CA), formulated the governing test. Liability is not automatically engaged by a fault in the duty to inform. The court applies a test that is essentially subjective: would this patient, in the particular circumstances, have accepted the intervention anyway if properly informed? That assessment turns mainly on the patient's testimony, which must be weighed with caution, so courts also ask what a normally prudent and diligent person would have decided, a so-called objective test which goes essentially to the credibility of that testimony. The objective test does not replace the subjective test; it completes it. This is : the court asks whether this patient would have refused, then verifies whether that refusal would have been reasonable.

M.G. c. Pinsonneault illustrates the method. The Superior Court found a fault in the failure to tell the parents that a caesarean was possible. On causation, Justice Tôth held that the plaintiff must show the outcome would have been different absent the fault and that external elements are needed to show the refusal would have been reasonable; the mother would have requested a caesarean, and reasonably so. Sosnowski c. Lussier shows the opposite result: a fault, because the two physicians heard as experts stated that they disclosed the risk in question, but no causation, because like any reasonable person the plaintiff would not have refused the treatment on account of the minimal risk of thrombophlebitis.

Worked example: the cosmetic laser scar

A 52-year-old accountant consults a dermatologist about a benign but visible facial lesion. The dermatologist proposes a laser treatment, describes it as routine, and has her sign a two-page at reception before the consultation. The form lists "scarring" among possible complications; the physician's note reads "risks discussed." The treatment leaves a permanent depigmented scar, a complication documented at roughly 0.5 percent for her skin type.

Fault. Because the treatment was cosmetic, Parenteau c. Drolet and Roy-Fortier c. Michaud require disclosure even of statistically remote risks where the consequence is serious. Permanent facial scarring is disastrous for a patient who chose the treatment for appearance. The form signed before the consultation is, on Cantin-Cloutier c. Gagnon, close to a blank cheque, and the note records no specific content. A finding of fault is likely.

Causation. Under Parenteau c. Drolet, the court asks whether this patient would have refused had the risk been explained, then whether that refusal would have been reasonable. She testifies that she sought treatment purely for appearance; her spouse and a colleague corroborate that she had called the lesion "a nuisance, nothing more." The refusal is credible and reasonable, and liability follows. Had the lesion been suspected of malignancy, both analyses would differ.

Proving Causation in Practice

The order of proof follows from the test. The patient testifies first, to explain why consent would have been refused. Corroboration follows: friends, family, employment, and other circumstances showing that the refusal is legitimate and not merely a reaction to the injury.

Daigle c. Lafond, 2006 QCCS 5136, tested the outer limit of corroboration. The patient developed a "Sahara" syndrome (the constant sensation of sand in the eyes) after elective laser eye surgery. Her counsel filed a Léger Marketing survey of 1,002 Quebec adults, 84 percent of whom said they would refuse a non-essential laser operation carrying the complication rate disclosed. The court accepted that, viewed objectively, a large part of the population would have declined or delayed the intervention, and the plaintiff succeeded. Deslauriers criticized this evidence: its methodology was doubtful, it inflated expert costs, and the assessment of reasonableness and credibility belongs to the judge, not to the Quebec population.

The burden remains heavy. Professor Ferron Parayre observes that the patient will generally find it very difficult to establish that treatment would have been refused, whatever the test; her review of Superior Court decisions from 2010 to 2020 found that in eight cases where fault was established, causation was proved in only three.

Implementing the Duty to Inform

Who Must Be Informed

Information is addressed to the person who will decide. Art. 29 of the Code de déontologie des médecins requires the physician to ensure that the patient or the legal representative has received the relevant explanations; art. 57 requires disclosure of a grave or fatal prognosis to the patient or, failing that, the legal representative, unless there is just cause; art. 59 requires collaboration with relatives or any person showing a significant interest in the patient.

Professors Philips-Nootens and Kouri summarize the rule. The information goes to the capable and apt patient, meaning the adult and the minor of 14 years or more. For the inapt person, the physician informs the representative empowered to decide (mandatary, tutor, or curator) or, failing one, the spouse, a close relative, or a person showing a particular interest; for the minor under 14, the holder of parental authority. The obligation exists toward the patient, not toward relatives, unless they represent the patient; the duty to collaborate with relatives is lighter and may not breach professional secrecy. In M.G. c. Pinsonneault, the court asked who was the person apt to consent: if the physician considered the mother inapt during labour, he had to obtain the spouse's informed consent to the mid-forceps delivery, all the more so given her question about a caesarean; the spouse was available, and no such consent was sought.

How the Information Must Be Conveyed

In Cantin-Cloutier c. Gagnon, REJB 2000-21212 (C.S.), the court held that the manner of transmission must be adapted to the patient's comprehension, taking into account age, intelligence, past experience, mental status, and education. The physician must ensure not only that the information was transmitted but that it was understood; vocabulary may vary, but the explanations must be complete regardless of the patient's intellectual capacity. The intensity of the duty rises when the patient asks questions, but the physician cannot escape liability by pleading that the patient asked nothing: the duty is spontaneous. The CMPA guide adds that the physician must answer all specific questions about risks and always give the patient the opportunity to ask. Philips-Nootens and Kouri add that language barriers and disabilities such as deafness require adjustments and cannot excuse a failure to inform, except in a case of (force majeure).

The patient's own background shapes what must be said. In Bouchard c. Villeneuve, the mother was a trained infant-care worker who had seen eighteen cases of trisomy in her work, knew of amniocentesis from an earlier pregnancy, and had missed appointments; her knowledge and lack of cooperation affected the analysis, because the duty runs in both directions. In Morrow c. Hôpital Royal Victoria, [1990] R.R.A. 41 (C.A.), the patient who received electroshock treatment was herself a neurologist, so detailed explanations were unnecessary. In Minier c. Bouchard, 2019 QCCS 962, an articulate plaintiff who had undergone several anaesthesias could not be believed when he claimed to have understood nothing of the technique proposed.

Continuity. Baudouin describes informing and obtaining consent as a continuous process comprising several acts of consent: the patient must be kept aware of new elements, may withdraw consent during a procedure, and must be asked again when new facts emerge.

Timing of the assessment. Trudeau c. Cérat, 2021 QCCQ 12824, confirms that the scope of the duty is decided case by case, at the time of the impugned act, against the knowledge the physician should reasonably have possessed then.

The duty to inform oneself in order to inform. In Poulin c. Prat, J.E. 95-2104 (C.S.), affirmed in part REJB 1997-02598 (C.A.), a patient suffered a thrombosis attributable to oral contraceptives and smoking after the surgeon failed to recommend stopping the contraceptives before surgery. A general surgeon performing about sixty cholecystectomies a year, including on young women using oral contraceptives, was bound to possess that knowledge. Baudouin likewise notes that a physician has been held liable for failing to disclose a risk the physician should have known.

Two clarifications govern consent forms. First, the form is information, not a release: art. 1474 CCQ prohibits excluding liability for bodily or moral injury, so a signed form cannot waive recourse. Second, its evidentiary weight has declined. The older view, in Fortin-Gilman c. Schwarz, [1994] R.R.A. 1011 (C.S.), was that a patient who signed a form stating that the surgeon had explained the nature and foreseeable effects of the surgery should not have signed if that was untrue. Courts now treat the form as prima facie evidence open to contrary proof.

The circumstances of signature can defeat the form entirely. In Cantin-Cloutier c. Gagnon, the patient signed before she had even met the physician; the court held that signing first amounts to a blank cheque of consent and annulled it. In Daigle c. Lafond, a two-page form handed to the patient minutes before elective surgery was described as a subtle manoeuvre to obtain a signature that would later defeat any recourse, and the consent was held not free and informed. By contrast, in Bougie c. Morency, 2019 QCCS 4325, a specific consent to a sterilizing procedure, together with a brief but contemporaneous consultation note recording that advantages and disadvantages had been explained, was accepted.

The CMPA guide draws the practical conclusion: a signed form has undeniable probative value, but when consent is disputed a contemporaneous note by the physician, especially one recording the patient's particular questions or concerns, may be of equal or greater use.

What Must Be Disclosed

Arts. 28 and 29 of the Code de déontologie des médecins require explanations relevant to understanding the nature, purpose, and possible consequences of the proposed act. Case law and doctrine break this down as follows.

The diagnosis. Before a treatment can be discussed, the patient must be told what the patient has.
The nature of the intervention, translated into accessible language rather than a medical course.
The objectives of the intervention.
The other therapeutic choices. In M.G. c. Pinsonneault, one of the physician's failings was that he did not present the alternatives for the delivery, including a caesarean.
The consequences of not undergoing the intervention.
The risks, assessed on two poles: gravity and frequency. In Parenteau c. Drolet, the Court of Appeal held that the duty covers immediate risks and the potential consequences of the post-operative phase and beyond. Probability is the first factor, but the court refused to fix a mathematical threshold: one cannot say in the abstract that a risk of 1 percent, 0.04 percent, or 0.001 percent is negligible. The second factor, considered in symbiosis with the first, is the severity of the potential harm for the patient in question. A statistically insignificant risk causing only slight, passing discomfort probably need not be disclosed; the same risk must be disclosed if its effect is particularly grave (blindness, permanent disability, death) or may have disastrous consequences for that patient. The intensity of the duty is thus measured against probability, the nature of the intervention, and the patient's own circumstances.
The existence of a waiting list. Philips-Nootens and Kouri observe that the physician must give the patient the information needed to decide despite delays: the possibility of transfer to another physician with a shorter list, referral to private diagnostic centres if the patient prefers to pay rather than wait, and the risks of examinations that delay may force to be repeated.
The identity of the participants, addressed next.

Identity of the Participants

The patient-physician relationship is , which raises the question whether the physician must disclose that others, in particular residents, will take part. In Currie c. Blundell, [1992] R.J.Q. 765 (C.S.), a cardiac surgeon entrusted a major part of the operation to his resident, who caused a serious haemorrhage he could not control in time. The surgeon was not authorized to place his patient's fate in the resident's hands for a major part of the intervention. Whether an act is accessory or major is a matter of expert evidence, and routine delegation does not make delegation reasonable.

Murray-Vaillancourt c. Clairoux (C.S. 1989), in which a resident perforated the oesophagus, set out three conditions under which the physician need not disclose that an intermediary will intervene:

the delegation is limited to simple accessory or material acts;
the person assisting is sufficiently qualified to perform the act; and
the act remains under the supervision and control of the treating physician.

Where all three are met, no disclosure is required. The case law has applied these conditions in teaching hospitals, on the reasoning that a patient who enters a university hospital expects residents and accepts the three conditions, though nothing more; whether they apply elsewhere has not been decided. Where a third party who is not a resident intervenes, the general rule of an intuitu personae relationship is that the patient must be told.

Labrecque c. Hôpital du St-Sacrement, [1995] R.R.A. 510 (C.S.), affirmed [1997] R.J.Q. 69 (C.A.), rejected the argument that a teaching hospital commits a distinct fault by not disclosing its university status, a public fact conferred by statute, since care given by residents under the treating physician's authority is as if given by the physician. R.N. c. Camiré, 2014 QCCS 2606, affirmed 2016 QCCA 705, added that a patient treated in a university hospital implicitly consents to certain care by a resident.

Marcoux c. Bouchard, [2001] 2 SCR 726, complicated the picture. The patient signed a consent for a second operation on the understanding that Dr. Bouchard alone would operate; in the end another physician, not a resident, intervened. The patient lost because the record showed she knew and had consented, but the Supreme Court stated in obiter, at paragraph 31, that the patient's right to know extends to the identity of the principal actors but not to customary auxiliaries of the operating room such as anaesthetists. The obiter focuses on actors rather than acts. A workable reconciliation reads the two together: principal actors perform principal acts, secondary actors perform accessory acts, and Marcoux therefore does not change the rule. The CMPA guide goes further, stating as soft law that when treatment is entrusted in whole or in part to someone else, the patient has the right to know that person's identity; a plaintiff may plead that guidance. A patient who does not want residents may say so; one who says nothing is presumed to know that residents are present.

Non-Therapeutic Care and the Heightened Duty

Courts are more demanding when the care is not required by the patient's health: cosmetic surgery, experimentation, and similar interventions. The CMPA guide offers a rule of thumb: in ordinary care, serious risks with a frequency of about 1 percent or more must generally be disclosed and risks below that threshold are usually too remote; in non-therapeutic care, everything must be disclosed, including minimal risks, and courts may impose a more demanding standard as they do for experimental research.

Parenteau c. Drolet explains why. In purely cosmetic surgery it is certain, save in highly exceptional cases, that no one would sacrifice life or health merely to preserve beauty, so the stakes differ from those of a patient who must undergo an intervention to cure a disease. The physician was therefore bound to inform his patient of post-operative risks even if statistically remote, because of the particularly serious character of their consequences for her.

Roy-Fortier c. Michaud, REJB 1997-03018 (C.S.), involved a phenol-based facial rejuvenation treatment administered by a former gynaecologist with no dermatology training; the patient suffered second-degree burns and permanent intolerance to sun and cold. Where care is not necessary to improve health, the duty extends not only to normally foreseeable risks but also to inconveniences that materialize less frequently.

Weiss c. Solomon, [1989] R.J.Q. 731 (C.S.), is the reference on research. A patient recently operated on for cataract joined a hospital research program testing ophthalmic drops, monitored through fluorescein angiograms, and died of cardiac failure after the first injection. He would not have joined a program with no therapeutic purpose had he been told of the risk of death, however remote. The physician who performed the angiogram was not liable: he committed no fault in the procedure, and the duty to disclose the program's risks fell first on those administering it under the approved protocol, which referred to the Declaration of Helsinki and required disclosure of all potential risks.

Dupont c. Corbin, REJB 1997-03516 (C.A.), addresses mixed-purpose care. The patient had fixed dental prostheses installed at a cost of $24,000, and the aesthetic result was her primary aim. Where a treatment has both a functional and an aesthetic purpose, the duty sits at a level reflecting the relative importance of the two objectives.

Limits of the Duty to Inform

Emergency

In an emergency the patient's is not required, as art. 28 of the Code de déontologie des médecins recognizes. The exception is construed restrictively, and the physician bears the burden of proving the emergency. Philips-Nootens and Kouri derive the definition from art. 13 CCQ: an emergency exists when the person's life is in danger or integrity is threatened, which matches the medical definition of a situation that cannot be deferred without risk of death or grave and permanent harm. Emergency refers both to the speed of the action required and to its purpose, which is to avoid a greater peril.

The Patient's Refusal to Be Informed

The prevailing sentiment is that a patient who may refuse treatment may also refuse information, and such a refusal affects the intensity of the duty. Philips-Nootens and Kouri record three positions in doctrine: some hold that disclosure cannot be imposed and that the patient's "voluntary illusions" may be respected; others accept waiver for therapeutic interventions but not for non-therapeutic procedures, research, or procedures carrying serious risks; others still hold that an anticipated waiver of a right as fundamental as the right to information is contrary to public order. The CMPA guide advises redoubled caution before accepting a waiver from a patient who declares readiness to proceed whatever the risks, and the record should document it.

Therapeutic Privilege

Therapeutic privilege is the deliberate omission of information the physician would normally provide. It is very rare, and the physician bears the burden of proving it. Art. 57 of the Code de déontologie des médecins preserves it in the words "unless there is just cause." The CMPA guide describes the circumstances: when emotional factors make the patient unable to cope with pre-treatment explanations, the physician may withhold information or give only very general information, with great discernment and for compelling clinical reasons. It has no place in cosmetic surgery, and the physician's protection lies in the notes.

Known or Obvious Risks

What the patient already knows need not be disclosed. In Gingues c. Asselin, [1990] R.R.A. 630 (C.S.), the plaintiff knew that each previous operation had caused significant haemorrhages forcing the surgeons to stop, and had not warned the defendant.

Baudouin distinguishes , common to a type of intervention (the risks inherent in any general anaesthesia or of post-operative infection), from particular to the intervention or the patient. General risks need not necessarily be disclosed, absent special circumstances or a particular question, since they are usually presumed known or not significant. The rule is not absolute: the normal risk of anaesthesia may be much higher for a cardiac patient, and the physician must then disclose the increase for that patient.

Internet research raises the same question in modern form. In Frias Da Costa c. Billick, 2018 QCCS 1248, the court took into account that the plaintiff spent hours daily researching his condition online. In Bishop c. Vaillancourt, 2014 QCCS 1375, affirmed 2016 QCCA 316, the court refused the physician's argument that the patient had read the online literature, because the court cannot decide on hypotheses. In M.J.R. c. Girard, 2019 QCCS 1937, affirmed 2021 QCCA 826, a child was born with Wolf-Hirschhorn syndrome, a rare chromosomal anomaly; the possibility of a genetic cause of the growth restriction had been raised with the parents five times, and they understood the stakes and had researched them online. The claim failed because the physicians had given an accurate picture of the risks, leaving the decision to interrupt the pregnancy to the mother. Internet research does not replace the physician's duty to inform, although the point may evolve.

Practice Checklist

Ask what a prudent and diligent physician would have disclosed in the circumstances proper to this patient.
Verify that the diagnosis, nature and objectives, alternatives, consequences of refusal, and risks were each addressed, weighing each risk by frequency and gravity.
Classify the care as therapeutic, non-therapeutic, experimental, or mixed.
Identify the person apt to consent: the patient aged 14 or over, the representative of an inapt patient, or the holder of parental authority.
Confirm that the information was adapted to the patient's comprehension, that understanding was verified, and that material risks were disclosed spontaneously.
Examine the circumstances of signature of any consent form and compare it to the contemporaneous notes; the form is information, not a release (art. 1474 CCQ).
If a resident participated, test the three conditions: accessory or material acts, sufficient qualification, supervision and control.
On causation, take the patient's testimony first, gather corroboration, and test reasonableness as a matter of credibility.
For each limit (emergency, waiver, therapeutic privilege, known risks), confirm that the physician can prove it and that the record documents it.

Glossary

Consent formformulaire de consentement: A written record of the patient's authorization of care; evidence of consent, rebuttable by contrary proof, and never a waiver of recourse.
Duty to informobligation de renseignement: The physician's obligation to give the person who will decide on care the explanations needed to understand the nature, purpose, alternatives, and possible consequences of a proposed act.
Emergencyurgence: A situation in which a person's life is in danger or integrity is threatened (art. 13 CCQ), excusing prior consent.
Free and informed consentconsentement libre et éclairé: The patient's authorization of care, given without pressure and after adequate disclosure (art. 28, Code de déontologie des médecins).
General risksrisques généraux: Risks common to a type of intervention, such as those of general anaesthesia, usually presumed known.
Intuitu personaeintuitu personae: A relationship entered into in consideration of the identity of the other party, which shapes what a patient must be told about who will perform the care.
Inviolability of the personinviolabilité de la personne: The principle that no one may interfere with a person's body without consent.
Modified objective testcritère objectif modifié: The common-law causation test, asking what a reasonable person in the patient's situation would have decided.
Non-therapeutic caresoins non thérapeutiques: Care not required by the patient's health, such as cosmetic surgery or research, for which the duty to inform is intensified.
Prudent and diligent physicianmédecin prudent et diligent: The civil-law test for fault, focused on what a reasonably prudent physician would have disclosed in the circumstances proper to that patient.
Rational subjectivitysubjectivité rationnelle: The Quebec causation test, asking whether this patient would have refused if properly informed, with the reasonableness of that refusal testing the credibility of the testimony.
Reasonable patientpatient raisonnable: The common-law test for fault, focused on what a reasonable person in the patient's position would want to know.
Special risksrisques spéciaux: Risks particular to the intervention or to the patient, which must be disclosed.
Superior forceforce majeure: An external, irresistible, and unforeseeable event; the only excuse for failing to adapt information to a language barrier or disability.
Therapeutic privilegeprivilège thérapeutique: The exceptional, narrowly construed faculty of withholding information for just cause when the patient cannot cope with it.

References and Further Reading

Civil Code of Quebec: arts. 13, 1474.
Code de déontologie des médecins: arts. 28, 29, 57, 59.
Code de déontologie des avocats: art. 30 (by analogy).
Canadian Medical Protective Association, Considérations pratiques sur le consentement éclairé (May 2006, revised April 2021).
Supreme Court of Canada: Hopp c. Lepp, [1980] 2 SCR 192; Reibl c. Hughes, [1980] 2 SCR 880; Ciarlariello c. Schacter, [1993] 2 SCR 119; Hollis c. Dow Corning Corp., [1995] SCC; Arndt c. Smith, [1997] 2 SCR 539; Marcoux c. Bouchard, [2001] 2 SCR 726.
Quebec Court of Appeal: Dunant c. Chong, EYB 1985-143941 (C.A.); Parenteau c. Drolet, 1994 CanLII 5444 (QC CA); Dupont c. Corbin, REJB 1997-03516 (C.A.); Morrow c. Hôpital Royal Victoria, [1990] R.R.A. 41 (C.A.); Labrecque c. Hôpital du St-Sacrement, [1997] R.J.Q. 69 (C.A.); M.G. c. Pinsonneault, 2017 QCCA 607; Bishop c. Vaillancourt, 2016 QCCA 316; R.N. c. Camiré, 2016 QCCA 705; M.J.R. c. Girard, 2021 QCCA 826.
Superior Court and Court of Quebec: Weiss c. Solomon, [1989] R.J.Q. 731 (C.S.); Murray-Vaillancourt c. Clairoux (C.S. 1989); Gingues c. Asselin, [1990] R.R.A. 630 (C.S.); Currie c. Blundell, [1992] R.J.Q. 765 (C.S.); Fortin-Gilman c. Schwarz, [1994] R.R.A. 1011 (C.S.); Poulin c. Prat, J.E. 95-2104 (C.S.); Bouchard c. Villeneuve, 1996 CanLII 4619 (QC CS); Roy-Fortier c. Michaud, REJB 1997-03018 (C.S.); Cantin-Cloutier c. Gagnon, REJB 2000-21212 (C.S.); Daigle c. Lafond, 2006 QCCS 5136; M.G. c. Pinsonneault, 2014 QCCS 1222; Bishop c. Vaillancourt, 2014 QCCS 1375; R.N. c. Camiré, 2014 QCCS 2606; Sosnowski c. Lussier, 2016 QCCS 1079; Frias Da Costa c. Billick, 2018 QCCS 1248; Minier c. Bouchard, 2019 QCCS 962; M.J.R. c. Girard, 2019 QCCS 1937; Bougie c. Morency, 2019 QCCS 4325; Trudeau c. Cérat, 2021 QCCQ 12824.
Doctrine: Suzanne Philips-Nootens and Robert P. Kouri, Les éléments de la responsabilité médicale, 5th ed., Montréal, Éditions Yvon Blais, 2021; Jean-Louis Baudouin, La responsabilité civile, vol. 2; Audrey Ferron Parayre; Deslauriers.

Disclaimer

This article is for informational purposes only and does not constitute legal advice. Quebec civil law may evolve through legislation and judicial interpretation. For advice on a specific situation, consult a qualified Quebec lawyer or notary.

In this article

In this series