What is the standard for disclosing all material risks to a patient?

British Columbia, Canada


The following excerpt is from Arndt v. Smith, 1995 CanLII 1370 (BC CA):

33. In summary, what seems to have happened in Hopp v. Lepp and Reibl v. Hughes is that the standard set by a reasonable practitioner in the field has been retained as a measure of the extent of the duty of the doctor to the patient for such matters as diagnosis and the carrying out of treatment or surgery, but the standard for gauging the extent of the duty of the doctor to the patient in matters to do with the choice of decisions about treatment and about all other matters requiring the understanding and knowing cooperation of the patient is not the standard of the reasonable practitioner, set by medical considerations alone, but rather the standard of disclosing all material risks and all special or unusual risks, and answering the patient's questions fully and frankly. That standard has its root in the social concept of individual responsibility for health and bodily integrity and in the legal concepts associated with considering the relationship between a doctor and a patient, at least with respect to decisions involving understanding and choice, as a fiduciary relationship. See the cases referred to in Hopp v. Lepp. But then, in Reibl v. Hughes that fiduciary standard is grafted on to some negligence concepts which in turn were utilized to distinguish the duty of full disclosure before treatment from concepts about battery arising form a true absence of consent. But the fiduciary duty-negligence graft presents some analytical difficulties, among which is the issue of causation which was dealt with, but not fully explored, in Reibl v. Hughes, where some problems which are relevant to this case were left unresolved.

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