What is the test for disclosing a patient’s health risks?

The decision in Reibl v. Hughes, supra, makes clear that the medical profession is not to determine by itself what risks are material and hence should be disclosed. At p. 894 it is said: “Expert medical evidence is, of course, relevant to findings as to the risks that reside in or are a result of recommended surgery or other treatment. It will also have a bearing on their materiality but this is not a question that is to be concluded on the basis of the expert medical evidence alone. … What is under consideration here is the patient’s right to know what risks are involved in undergoing or foregoing certain surgery or other treatment. The materiality of non-disclosure of certain risks to an informed decision is a matter for the trier of fact, a matter on which there would, in all likelihood, be medical evidence but also other evidence, including evidence from the patient or from members of his family.”

After discussion, the court in Reibl v. Hughes, supra, opted for an objective test, taking into account the particular circumstances of the patient. At p. 899-900 the Chief Justice says the following: “In saying that the test is based on the decision that a reasonable person in the patient’s position would have made, I should make it clear that the patient’s particular concerns must also be reasonably based; otherwise there would be more subjectivity than would be warranted under an objective test. Thus for example, fears, which are not related to the material risks, which should have been but were not disclosed, would not be causative factors. However economic considerations could reasonably go to causation where, for example, the loss of an eye as a result of non-disclosure of a material risk brings about the loss of a job for which good eyesight is required. In short, although account must be taken of the patient’s particular position, a position that will vary with the patient, it must be objectively assessed in terms of reasonableness.