What Are a Patient’s Rights?
Every patient has the right to choose her doctor. Of course, the doctor does not have to accept you as a patient, but if a doctor approaches you and you do not want that doctor to treat you, you can refuse. Every woman should choose her doctor carefully. Ask around and find a doctor who has values similar to your own. For example, if you believe that a terminally ill person should not be kept alive by great medical efforts and machinery, but should be allowed to die naturally, you will want to find a doctor who shares those views. Do not wait until you are ill to locate a doctor. You should find a doctor and discuss your major concerns at the first meeting. If a doctor does not share your views, you may want to find someone else. Except in special circumstances, such as emergencies, no one is allowed to touch you or treat you without your consent.
The consent that you give should be informed consent; meaning you should know the purpose of the procedure or treatment, what the procedure or treatment will involve, common side effects or consequences of the procedure or treatment, and the alternative procedures or treatments, if any, which are available, before you agree to undergo certain procedures or treatment. In other words, you should know what you are consenting to. Ask questions; you are entitled to receive truthful answers.
There are different ways of giving your consent. It can be oral, written, or implied from the circumstances. For example, your consent is implied if you line up to receive an injection and hold your arm out to the doctor when your turn comes. You may not have given any oral or written permission for treatment, but your actions indicate to the doctor that you agree to the treatment.
If you are asked to sign a consent form for some medical procedure, read the form carefully. Do not sign the form if you do not understand all of it. If you want to agree to only part of the procedure, make changes to the form so that anyone who reads it will know what you have agreed to. A consent form should not be “blanket” consent; it should be specific. For example, if you are going to undergo a biopsy on your right breast, the consent should be for the anesthetic and the biopsy procedures. Unless you give the doctor more authority, she cannot remove your breast if the biopsy shows that you have cancer. Once a doctor agrees to treat you, she cannot refuse to finish the treatment without your consent or you may be left in some danger.
Who Gan Give Informed Consent?
Normally, your own consent is needed before any treatment is given. If there is no emergency but you are physically or legally unable to consent, the doctor should obtain consent from a person who has the authority to give consent on your behalf. For example, the parent or guardian of a child must consent to any treatment received by the child. The guardian of an adult who is not legally competent must consent to any treatment received by that person. If your spouse is unable to consent to treatment (for example, he is unconscious) the doctor will seek your consent to treatment.
Parental consent is normally required for non-emergency treatment of a minor. Sometimes, the consent of a minor is acceptable if the child seems mature and is able to understand the nature and the consequences of the treatment. This would be particularly true in the case of a girl over sixteen seeking birth control or abortion procedures. In other cases, doctors or hospitals may be cautious due to the possibility of a lawsuit. If your child is injured at school and you have not given written authority to the school to obtain treatment, your consent will be necessary before any treatment is given (unless it is a real emergency).
Parents who leave their children with another adult for long periods of time, such as a vacation, may want to give that adult written authority to obtain whatever medical treatment is necessary for the children during the parents’ absence. The consent of any person who is mentally competent should be obtained from that person before treatment is given. If a person is not competent, consent must be obtained from the person who has the authority to give it.
What about an Emergency Situation?
A doctor has the privilege to treat without consent in a real emergency situation. If the doctor is sued for her actions, she will have to prove that the situation required immediate action to save the patient’s life. The doctor will also have to show that the patient had not specifically objected to that treatment. For example, if you are injured in a car accident and require a blood transfusion but your doctor knows that you object to blood transfusions on religious grounds, the doctor cannot give you a transfusion without a court order.
What Is Medical Negligence?
Medical negligence is improper or substandard treatment given to you by your doctor. Hospitals and other medical staff can also be guilty of medical negligence. Doctors usually have to provide you with a level of care that would be expected of an ordinary competent medical doctor. No more, no less. The level of care depends on a number of factors including the type of doctor that you have (e.g. whether you have a general practitioner or a specialist), the location, the facilities available, etc. For example, the level of care expected from a doctor whose patient is in a large hospital may be greater than that expected from a doctor who cares for a patient in a farmhouse with few conveniences.
For negligence to exist: there must be a doctor-patient relationship; the relationship must be one that requires the doctor to meet a certain standard of care when treating the patient, and the doctor must fail to meet that standard; and the patient must suffer some injury or damage because of the doctor’s failure to meet the standard.
Must the Doctor Keep My Secrets?
Doctors, as well as other medical personnel and hospitals, now have a legal obligation under the Health Information Act, Freedom of Information and Protection of Privacy Act, and the Personal Information Protection Act not to reveal anything about a patient’s condition to someone else without the patient’s consent.
There will be some circumstances that are unique and specific, such as death or injury, where information can be released to family members where such disclosure is not contrary to the express request of the individual. However, if for some reason your doctor was called as a witness, she could be forced to tell the court things that you have told her. The right to be excluded from being forced to reveal conversations made during a professional relationship is called privilege. By law, lawyers are the only professionals who are not allowed to reveal in court those confidences told to them by a client. While a doctor may have to disclose your secrets in court, that does not give her the right to reveal the information anywhere else.
What Are My Remedies?
If a hospital or your doctor has disclosed confidential information without your consent, or refused to provide, upon request, your personal health information, you may apply, in writing, within sixty days of your cause of complaint arising, to the Information and Privacy Commissioner to review the matter. (www.oipc.ab.ca)
Can I Sue My Doctor?
Yes. If your doctor has revealed confidential information, treated you without your consent, or if your doctor has been negligent, you may sue your doctor for negligence or breach of contract. If you believe that you have a legal action against your doctor, contact your lawyer or Legal Aid office for further information.
If your doctor has touched or treated you without your consent, you may also be able to take steps to bring criminal charges against her. Some examples of criminal proceedings brought against physicians are sexual assault, criminal negligence, and unlawful removal of organs from dead bodies. You should contact the police or Crown Prosecutor if you wish to press charges. If the police do not charge your doctor, you may lay the charge yourself. This involves the laying of a private information before a Justice of the Peace. Before proceeding with criminal charges, you must make sure that you are prepared to follow through with them. If the police or Crown refuse to act, it may be wise to discuss the matter with your lawyer or Legal Aid office before continuing.
Doctors in Alberta are governed by the Alberta College of Physicians and Surgeons. The College has the authority to discipline doctors who do not provide a proper standard of care or who are guilty of professional misconduct. Contact the Alberta College of Physicians and Surgeons for further information.
What about Assisted Suicide?
Assisted suicide is illegal. In the Supreme Court of Canada decision, R. v. Rodriguez (1993), it was held that Section 241(b) of the Criminal Code, which prohibits assisted suicide, is constitutional, even though it infringes on the “security of the person.”
It was determined by the court that personal autonomy is not as important as the state’s interest and the overall value of the sanctity of life. Thus, people are not given legal approval to seek assistance in carrying out their own decision to die.