ABSTRACT
In medical negligence claims involving ‘informed consent’, claimants must prove that a physician failed in their duty to provide adequate information, and that this failure caused the patient’s injury. In Canada, unlike in Australia or the UK, the common law has adopted a ‘modified objective’ test to analyze the decision component of causation in these cases, asking what a reasonable person in the patient’s position would have done if they had been adequately informed. This chapter examines the main criticisms of the modified objective test. First, the stated rationale for the test – that it mitigates the effects of claimants’ hindsight bias – has rightly been criticized as weak. Where outcomes depend on hypothetical decisions about which available evidence may be unreliable, analyzing causation is challenging. These challenges do not, however, require a different test to be used in some poorly defined set of cases, but rather a consistent approach that carefully considers objective and subjective factors and evidence in each case. The second common criticism of the modified objective test – that it undermines patient autonomy – does not hold up to scrutiny. As part of the negligence analysis, the test has no direct effect on patients’ choices, and whether it is consistent with respect for autonomy depends very much on how it is understood and applied. Furthermore, in certain cases it is arguably appropriate to analyze causation by considering what a reasonable person in the patient’s position would have done, understanding that to mean a rational person able to make a considered choice consistent with their own values.
von Tigerstrom, Barbara, Informed Consent, Causation, and the ‘Reasonable Patient’ (March 31, 2026), University of Saskatchewan College of Law Research Paper Forthcoming.
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