Health Law in Canada, Volume 2, Issue 4: Pages 85-90, 1981.
By Margaret A. Somerville
Dr. Margaret A. Somerville is Founding Director of The McGill Centre for Medicine, Ethics and Law, and Gale Professor of Law at McGill University, Montreal.
Based on a paper presented at The Third Annual Conference of The Canadian Institute of Law and Medicine, "Consent to Health-Care."
Do certain rules or legal requirements relevant to obtaining consent to a medical intervention differ depending on whether a procedure is classified as being undertaken with a therapeutic or non-therapeutic intent? The answer is yes. But the reality is complex because the therapeutic/non-therapeutic distinction is always combined with other characterizations of any particular medical intervention and these may also affect either the legal requirements that apply or the outcome that results from applying the same legal rule. These other characterizations include whether the intervention is elective or non-elective, and whether it constitutes research on non-research: that is, "practice". The combination of characterizations that one can evolve include the following:
Neonatal circumcision would fall into the fourth category.
These classifications will be discussed, first in relation to competent adults. Then, the modifications needed when the classification is applied to treatment given to incompetent persons will be considered.
With respect to designating a medical intervention as elective or non-elective, in one sense, all medical interventions to which informed consent is obtained are elective. However, the courts seem to use this term to ndicate the degree of therapeutic necessity for undertaking the particular procedure. It is not easy to determine exactly how electiveness is being judged, but when it is not a clear-cut therapeutic decision that the atient should have undergone any given procedure or when, perhaps, the procedure might benefit the patient but failure to undergo it will not harm him or her1, the procedure will be described as elective. (...)
...[I]n the area of "proxy" consent, or as it is better called,
third-party authorization, as the law presently stands, it is not possible for a guardian (or curator) to consent to a non-therapeutic research intervention on an incompetent person in his or her care. In contrast, guardians (or curators) may consent to some therapeutic research interventions on such persons. (...)
...it must be brought home to the patient that the intervention is non-therapeutic, if this is the case. Special care is needed in ensuring that there is apparent understanding of such information because patients tend to identify physicians with therapy and find it hard to believe that a physician would carry out a non-therapeutic procedure on them, even when they are expressly informed of this fact. (...)
Finally, there are the non-therapeutic/non-research medical interventions. These include operations on live donors who give organs for transplant, non-therapeutic sterilization, and aesthetic or cosmetic surgery. Some aesthetic surgery may be classified as therapeutic when there is a definite psychological indication for undertaking it and, of course, some may even be physically therapeutic, although in such cases it would probably be labelled aesthetic surgery. Several Canadian cases have dealt with aesthetic surgery, but of those that preceded the Supreme Court's decision in Reibl v. Hughes, some, with all respect, are not clear as to the required scope of disclosure of information to the patient. In general, one can say that a very full disclosure is needed when non-therapeutic medical intervention is involved. More than one court has indicated expressly that, far from worrying about frightening a patient by too detailed a disclosure, a physician would have been well advised to frighten the patient into not requesting or deciding against a certain procedure14.
One of the difficulties raised by non-therapeutic/non-research medical intervention is whether it is legal or illegal. Although the latter used to be the commonly held view, in all probability there has been a change of public policy, which allows such intervention to be brought within the shelter of the law when certain conditions are fulfilled15. (...)
When one moves outside the competent adult model, then whether a medical intervention is therapeutic or non-therapeutic becomes most important....It must always be kept in mind that more care is needed in giving permission for an intervention on another person than when we consent to have something done to ourselves. Finally, there is doubt as to whether third party authorization can be given to a non-therapeutic/non-research intervention; (...)
[W]hether therapy or non-therapy, and research or non-research is involved may alter the scope of the information that needs to be given to the patient to obtain his informed consent, and may make one aware of problems with voluntariness; that is, the presence of coercion. Such classification will also determine whether a guardian may authorize an intervention on his or her ward. (...)
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