Consent to Medical Treatment is Not a Waiver of Rights

With the holidays behind us, and all the full potential of the New Year before us, thoughts sometimes turn to our health. Now is the time to dust off the treadmill, avoid the sugary treats and maybe even see the doctor for a checkup. If there are any concerns, the doctor will likely recommend some form of treatment. Treatment can be as simple as a prescription for medication, or something more invasive like surgery. In either case, it is you, not the doctor, who will decide what treatment you will receive.

No doctor may provide treatment to you unless you consent to that treatment. We all have the right to decide what will or will not be done to our bodies. There are exceptions, of course. In a medical emergency, a doctor may provide medical treatment if you are suffering from an imminent life-threatening condition, and you are unable to communicate consent. This might happen when you are unconscious. If there is an emergency situation, and a substitute decision maker is available (usually a close family member), the doctor must obtain consent from that person. Even in that case, the doctor still must abide by your known wishes.

What does it mean, then, to consent to treatment?

Before you can consent to treatment, you must be informed about the treatment. The doctor must explain the nature of the treatment, and tell you about the significant risks, the likely outcome, and any alternatives to the proposed treatment.

Consenting to treatment does not mean you are giving up your right to sue the doctor if he or she is negligent in providing the treatment.

For example, if a doctor recommends surgery, the doctor would be expected to describe the procedure, and discuss the possible complications that could arise such as injury to internal organs or other nearby body structures, risk of bleeding, or risk of infection. The doctor might list the possible complications on a consent form for you to sign. This does not mean, however, that should you suffer one of those complications, you have given up your legal rights. The description of the possible complications is simply information you need to know before you agree to treatment. If you suffer a complication, it may be that nothing could have been done to avoid it, or it may mean the doctor made a mistake. In either case, the signing of a consent form is not a waiver of your legal rights.

Hopefully, the upcoming year will hold no particular health concerns for you. If it does, however, ask all the questions you need to understand any proposed treatment, and remember that the doctor is simply trying to inform you about your treatment, not to restrict your legal rights. If you feel that you have been injured as a result of a treatment mistake, speak to an experienced medical malpractice lawyer about your rights and potential remedies.


This blog post was contributed by Joni Dobson, OTLA Director and Lawyer with Legate & Associates LLP.




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Joni became a partner at Legate & Associates in 2012 having joined the firm 6 years before. Her practice is restricted to serious personal injury disputes, with a particular focus on medical malpractice and motor vehicle collisions. She has represented injured people both at trial and on appeal. Joni believes that an injured person should have a strong advocate who will go the full distance when required to obtain fair results.

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