In the event of a medical emergency, the consent of the patient is not required when the doctor believes the treatment is necessary.

For example, in Marshall v. Curry (1933), M.P.R. 267, the plaintiff went in for surgery for the treatment of a hernia. While performing the surgery, the doctor realized that the patient’s left testicle was severely damaged and it was necessary to remove it in order to treat the hernia. Plaintiff sued the defendant on the basis that there was no consent to remove the testicle.

However, the defendant discovered conditions which neither party had anticipated and that in removing the testable he acted in the interest of the patient and for the protection of his health and possibly his life. The court dismissed the plaintiff’s claim Nevertheless, in the event of a medical emergency doctors must respect the wishes of the client.

For example, in Malette v. Shulman 72 O.R. (2d) 417 (Ont. C.A.) a doctor was found liable in battery for ignoring a card stating that the patient did not want to receive blood transfusions because the patient was a Jehovah’s witness. Doctors must respect a patient’s right to refuse treatment. See also: Reibl v. Hughes 114 D.L.R. (3d) 1


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