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Malette v. Shulman: The Requirement of Consent in Medical
Emergencies
Norman Siebrasse*
1.
Introduction
Intuition is a useful guide in law, and we should be suspicious of jud-
gements which defy it. Malette v. Shulman’ is one such judgement. In awar-
ding $20,000 against the defendant for, in effect, saving the life of the
plaintiff, the decision is open to serious objections.
2. The Facts
On June 30, 1979, the defendant, Dr. Shulman, a general practitioner,
was on duty as the Kirkland Lake and District Hospital emergency officer
when the plaintiff, Mrs. Malette, was brought into the emergency room. She
was unconscious and in critical condition as a result of a motor vehicle
accident that had already claimed the life of her husband. “The plaintiff
presented to Dr. Shulman in a very dramatic manner with large quantities
of blood visible including a trail on the floor from ambulance to emergency
room as well as on walls, stretcher and nurses’ uniforms.” 2 The patient was
in or entering shock and was semi-conscious and incoherent. “Her nose
appeared to be completely severed. Her face, which was flattened and bal-
loon shaped with eyes swollen closed and mouth distorted open, was de-
tached from the skull….the plaintiff was vomiting blood.” 3 Medical experts
concluded that “on the generally accepted trauma chart injury severity scale
the plaintiff’s case was assigned a value of 29 which categorized the plaintiff
in a 50% mortality rate with full appropriate treatment. ‘4 That afternoon
*I would like to thank Professor Gordon Bale of Queen’s University for comments and
criticism of an earlier draft. Responsibility for the views expressed in this paper remains, of
course, my own.
1(1987), 63 O.R. (2d) 243, 43 C.C.L.T. 62 (H.C.) [hereinafter Malette cited to O.R.].
21bid. at 245.
31bid.
41bid. at 257.
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and into the small hours of the next morning Dr. Shulman demonstrated
exemplary professional skill in saving the life of the plaintiff. This according
to the expert witnesses relied on by the judge at trial, who “unreservedly
supported every aspect of Dr. Shulman’s treatment procedure” and
commended him for having done “a great deal in a short time.”‘5
This case is legally noteworthy because Mrs. Malette was a Jehovah’s
Witness, and because she carried with her a card expressly ruling out blood
transfusions under any circumstances. Dr. Shulman became aware of this
card before giving her any blood transfusions. However, Mrs. Malette’s con-
dition continued to deteriorate even after treatment with non-blood alter-
natives. When Dr. Shulman decided it was clear that blood transfusions
were necessary to save Mrs. Malette’s life, he went ahead and gave them, 6
feeling that he could not rely on the authority of such a card in a life and
death situation. At trial, Donnelly J. of the Ontario Supreme Court, sitting
without a jury, awarded damages of $20,000 against Dr. Shulman for battery,
having decided that Dr. Shulman was wrong in doubting that the card conti-
nued to represent Mrs. Malette’s true wishes.
We must be surprised that a doctor could be found liable for saving a
life, and before we rationalize the award too quickly on the basis of lack of
consent, we should note that the behavior of Dr. Shulman bears none of
the arrogance that we associate with medical battery. Donnelly J. notes that
“Dr. Shulman was not…seeking an excuse to circumvent the card and,
through medical arrogance, to usurp the decision-making process in favour
of his superior rights. There was no intransigent, defiant, refusal to accept
instructions in order to force treatment. Nor was there an intentional vio-
lation of, nor a gesture of contempt for, the plaintiff’s religious beliefs.”‘ 7
Rather, there was “an honest attempt to deal with a complex medical, legal
and ethical problem.”‘ 8 This case is morally distinguishable from the usual
medical battery cases, and we should expect it to be legally distinguishable
as well.
3. Negligence, Malice, Religious Discrimination & Conspiracy
The most important and contentious issue in this case is the finding of
battery on which the damages were based. However, the plaintiff sued for
negligence, conspiracy and battery against Dr. Shulman, the hopsital, the
hospital’s executive director and the nurses involved. All the allegations
51bid. at 264.
6Dr. Shulman “hung” the blood himself, by order of the hospital administrators, who wished
to insulate themselves from responsibility for this decision.
7Supra, note 1 at 273.
8lbid.
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except that of battery against Dr. Shulman were found to be groundless and
I will not review their disposal.
4. Battery: Damages
The first and most obvious objection to the decision concerns the award
of damages. Donnelly J. finds punitive damages to be inappropriate, and
indeed he declines to award costs to the successful plaintiff. The award of
$20,000 was based on general damages founded on mental distress. How-
ever, the plaintiff continues to be “recognized and accepted in her religious
community as being without fault. Nor does she regard her eternal salvation
as being compromised.”9 There is no evidence of any physical manifestation
of such distress, simply the plaintiff’s evidence that she feels “very, very
dirty.” 0 This judgement therefore, directly challenges the general rule that
claims for mental distress must be predicated on physical manifestations
of mental harm, or on conduct which is outrageous.I Neither is the case
here, and no reasons were advanced for not conforming to the general rule.
It might be said that the award could be justified on the basis of an
affront to the plaintiff’s dignitary interest, as would be the case, for instance,
if a woman were abused while under anaesthetic. 12 However, whether a
dignitary interest or an expanded notion of mental distress serves as the
basis for damages, it is fundamental in assessing damages that the damage
flow from the alleged tortious act. In awarding damages, one cannot compare
Mrs. Malette’s present mental state to what it would have been had there
been no accident. That would be appropriate in assessing damages against
whoever caused the accident. Rather, for our purposes, one must compare
her present mental state to what it would have been had Dr. Shulman not
given her blood. While Mrs. Malette may feel sullied and distressed, had
the action complained of not been committed, she would not be alive and
unsullied, but most probably, dead and unsullied.’ 3 Life itself, as well as
91bid.
IOlbid.
“See J.G. Fleming, The Law of Torts, 7th ed. (Sydney: Law Book, 1987) at 32.
‘ 21bid. at 23.
‘3Appropriate treatment was found to include administration of blood transfusions. Thus,
if the plaintiff had a fifty per cent chance of living with full appropriate treatment, she would
presumably have had even a lesser chance of surviving without blood transfusions. Certainly
Dr. Shulman, found to be a competent doctor, believed she would have died without blood.
It would be conceivable to base the award on the chance that Mrs. Malette would have lived
without treatment, but evidence would then be required to determine what that chance was,
and to show that it was not negligible. Moreover, the amount awarded would have had to have
been reduced in proportion to the probability that Mrs. Malette would have died without the
transfusion. As no such evidence was discussed by Donnelly J. in awarding damages, and as
no calculations were made, it is evident that he did not base his award on this argument.
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mental distress, resulted from the doctor’s actions, which clearly make this
situation distinct from that of battery perpetrated against an anaesthetized
victim. The difficulty of justifying damages in such a situation is illustrated
by analogy with “wrongful life” cases that have come before American
courts. There, it has been noted that “whether it is better never to have
been born at all than to have been born even with gross deficiencies is a
mystery more properly to be left to the philosophers and theologans. Surely
the law can assert no competence to resolve the issue, particularly in view
of the uniformly high value which the law and mankind has placed on
human life, rather than its absence.” 14 It is implausible that either mental
discomfort or dignitary interests are to be given greater weight than gross
physical deficiencies. Less abstractly, one commentator noted: “[i]f plaintiff
prevails, the result is a formal judicial declaration that it would have been
better if plaintiff had not been born.”‘ 5 Here, the result is a formal judicial
decision that Mrs. Malette is $20,000 dollars worse off than if she were dead.
Surely this is an absurd result.’ 6
That the damages awarded were excessive seems clear.’ 7 There is also,
however, a strong argument that Dr. Shulman should not have been found
liable at all.
“4Becker v. Schwartz, 46 N.Y. 2d 401 at 411, 413 N.Y.S. 2d 895 at 900, 386 N.E. 2d 807 at
812 (1978), quoted in Siemieniec v. Lutheran General Hospital, 117 Ill. 2d 230, 512 N.E. 2d
691 at 698 (1987).
15p.J. Kelley, “Wrongful life, Wrongful Birth, and Justice in Tort Law” (1979) 4 Wash. U.L.Q.
919 at 942.
16There have been wrongful life cases in which damage awards have been made, even though
such awards depart from general principles of tort law. This is widely recognized, indeed
sometimes explicitly acknowledged, even at the time that damages are awarded. See, e.g.,
Procanik v. Cillo, 97 N.J. 339, 478 A. 2d 755 (1984), in which the majority, responding to the
dissenting comment of Schreiber J. that the court is not justified in “discarding” the usual
principles of awarding damages (478 A. 2d at 773), says that “we seek only to respond to the
call of the living for help in bearing the burden of their affliction” (478 A. 2d at 763). While
such sympathy may sometimes justify departure from usual principles – but see Siemeniec,
512 N.E. 2d at 700-701 for critical comment –
the analogy with Mrs. Malette’s situation is
not perfect, and it is incongrous to apply such a humanitarian plea to compensate for “damages”
which would not even be actionable in most contexts.
17This is strengthened by the fact that Donnelly J seemed to consider the participation of
Mrs. Malette’s daughter as decisive in dismissing “speculative frailties” as to the validity of
the card. On her arrival at the hospital (after transfusions had already been started), the daughter
confirmed the card as recent, and insisted that her mother not be given any more blood. In
fact, the daughter’s participation only confirms what we have accepted, that Mrs. Malette
publicly announced her determination to refuse blood. It does not shed any more light on the
question of what she would have done when actually faced with the prospect of death. If the
daughter’s confirmation of the card was a decisive factor, then the award of any but nominal
damages becomes completely untenable. The “refusal” would have been valid only after blood
had already been given, and Dr. Shulman would have been liable only for the damage caused
by giving additional blood. This damage must be minimal.
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5. Presence of Consent
At first glance, this case would seem to turn on whether “the card”
actually constituted a valid refusal to undergo a blood transfusion, subject,
as it was, to the following objections presented by the defendant: (1) that
it might not represent the plaintiff’s current intent (the card was signed but
not dated), (2) that it might not have been intended to apply in life threa-
tening circumstances, or (3) that it might have been signed as the result of
religious peer pressure. On the facts, Donnelly J. found that “there is no
basis in evidence to indicate that the card may not represent the current
intention and instruction of the card holder,” and that “Dr. Shulman’s doubt
about the validity of the card, although honest, was not rationally founded
on the evidence before him.”‘ 8 However, in In re Estate ofDorone,’9 a case
with facts analagous to those in Malette, the Supreme Court of Pennsylvania
decided that “nothing less than a fully conscious contemporaneous decision
by the patient will be sufficient to override evidence of medical necessity”, 20
citing the same objections to relying on the card as were raised by the
defendant.
If we accept Donnelly J.’s finding, the Pennsylvania decision seems
overly broad, allowing a doctor to proceed in a situation in which there is
no rational doubt as to the patient’s wishes. I will argue that the result in
Dorone is preferable because Donnelly J. failed to draw an important dis-
tinction – between a rational doubt and a reasonable one. I will also argue
that the requirement for valid consent given in Dorone is indeed overly
broad, as it might allow, and even require, that a doctor proceed when there
is no reasonable doubt as to the patient’s wishes. In the balance of this paper,
I will examine the principles in issue, and attempt to clarify the requirements
for consent in emergency situations.
6.
“Informed Refusal”
I will first consider the novel argument forwarded by the defendant,
that the concept of informed consent should be extended to a right of “in-
formed refusal”. It was argued that Dr. Shulman was obliged in law to advise
the patient of the risks attendant upon refusing treatment, and to satisfy
himself that such refusal was based on a clear understanding of those risks,
before considering the refusal valid.
This argument is conceptually seductive since it attacks the always
blurred line between acts of commission and omission. However, as Don-
18Supra, note 1 at 268.
191n re Estate of Dorone, 502 A. 2d 1271 (1985), aff’d 534 A. 2d 452 (1987).
20534 A. 2d at 455 (original emphasis).
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aelly J. points out, refusal cannot be so easily assimilated into consent, if
only because a doctor is not open to liability for a refusal by the patient to
accept treatment. No doctor could be successfully sued for not having been
able to convince his patient of the advisability of a given procedure; conver-
sely, in a normal consulting-room situation, no doctor could be justified in
operating in the face of a patient’s refusal, merely because the doctor felt,
for one reason or another, that the patient had not properly understood the
procedure. “[The] right to refuse treatment is not premised on an unders-
tanding of the risks involved,” said Donnelly J., but rather it is “an inherent
component of the supremacy of the patient’s right over his own body.”‘2 1 In
other words, our society has not yet accepted the level of paternalism re-
quired to support a doctrine of informed refusal, which would allow a doctor
to proceed in the face of an express refusal of consent by the patient.
The judgement of the Supreme Court in Reibl v. Hughes,22 the leading
case on informed consent, may help clarify the flaw in this analogy. Reibl
established that liability for battery turned on whether there was consent
(except where there was deceit as to the nature of the act), and not on whether
consent was “informed”. If the consent is found not to have been informed,
then the physician may be liable in negligence, but not in battery. As with
consent, so with refusal; in other words, liability for battery must turn on
whether there was a refusal, not on whether it was informed. “Informed
refusal” could plausibly be invoked only in a negligence action, in which,
for instance, a patient refused the most effective treatment because of a
doctor’s inadequate explanation of the options.
7. Consent in Emergencies
The argument as it developed, concentrating on the validity of the card
and on the concept of “informed refusal”, almost completely missed an
essential feature of the case. It was an emergency situation. Donnelly J.’s
decision is based on the proposition that “the treating doctor avoids liability
for battery only with a valid consent”. 23 This is not the case: emergencies
are an exception, and until we have thoroughly explored the implications
of this exception, even the question of the validity of the card is of secondary
importance.
Donnelly J. himself quotes many sources to the effect that consent is
not required in emergencies. For instance, in Ontario, The Public Hospitals
Act provides that “where the surgeon believes that delay caused by obtaining
the consent would endanger the life or a limb or vital organ of the patient
21Supra, note I at 272.
22[1980] 2 S.C.R. 880, 114 D.L.R. (3d) 2 [hereinafter Reibl cited to S.C.R.].
23Supra, note 1 at 272.
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or out-patient, as the case may be…no consent is necessary….”‘ 24 He also
cites Parmley v. Parmley and Yule 25 in which Mr. Justice Estey of the Su-
preme Court of Canada stated: “[t]here are times under circumstances of
emergency when both doctors and dentists must exercise their professional
skill and ability without the consent which is required in the ordinary case.”
Generally, the authorities do not say that the consent is implied, but that
it is simply not necessary. The clearest statement of this comes in the case
of Marshall v. Curry,26 in which Chief Justice Chisholm of the Nova Scotia
Supreme Court stated: “I think it better, instead of resorting to a fiction, to
put consent altogether out of the case, where a great emergency which could
not be anticipated arises, and to rule that it is the surgeon’s duty to act in
order to save the life or preserve the health of the patient; and that in the
honest execution of that duty he should not be exposed to legal liability. 27
Even those cases dealing not with emergency situations, but with in-
formed consent in non-emergency situations, recognize this limitation. Al-
though the oft-quoted words of Cardozo J. in Schloendolffv. Society of Neiv
York Hospital,28 that “every human being of adult years and sound mind
has a right to determine what shall be done with his own body…”, 29 are the
definitive statement of principle on which the consent doctrine is based, the
statement is qualified as not appropriate “in cases of emergency where the
patient is unconscious and where it is necessary to operate before consent
can be obtained. ‘ 30 In Hopp v. Lepp,31 used by Donnelly J. as authority for
the proposition that “the treating doctor avoids liability for battery only
with a valid consent”, 32 “any question of emergency or mental incompe-
tency…is expressly left aside.”‘ 33 As well, in Reibl, Laskin C.J.C. held that
“actions of battery in respect of surgical or other medical treatment should
be confined to cases where…there has been no consent at all or where,
emergency situations aside, surgery or treatment has been performed or
given beyond that to which there was consent”. 34
We see, then, that the doctrine that consent is not required in emergency
situations is coeval with the doctrine of consent itself, and is acknowledged
24R.S.O. 1980, c. 410, s. 50(d).
25[1945] S.C.R. 635 at 646, [1945] 4 D.L.R. 81 at 89, quoted in Malette, supra, note I at
269.
2660 C.C.C. 136, [1933] 3 D.L.R. 260 (N.S.S.C.) [hereinafter Marshall cited to D.L.R.].
27Ibid. at 275, quoted in Malette, supra, note I at 269.
28211 N.Y 125, 105 N.E. 92 (1914).
29105 N.E. at 93.
30Ibid.
31[1980] 2 S.C.R. 192, 112 D.L.R. (3d) 67 [hereinafter Hopp cited to S.C.R.].
32Supra, note 1 at 272.
33Supra, note 31 at 196.
34Supra, note 22 at 890-91 (emphasis added).
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as such regularly. The present case presents an apparent conflict between
established principles, and we should not prefer one principle over another
without due consideration of the reasons behind them.
The most obvious explanation why consent is not required in emer-
gency situations is that consent is impossible to obtain. In other words, the
issue of emergency only arises if consent is absent. Moreover, if we have
consent – or refusal –
the existence of an emergency is irrelevant. Many
judgements implicitly or explicitly adopt this rationale for the emergency
doctrine, and this is undoubtedly the approach taken by Mr. Justice Don-
nelly. After citing the above passages from Marshall and Parmley v. Parmley,
he dismisses them by saying: “[a] special standard exists in emergency si-
tuations predicated on the impossibility of obtaining valid consent because
of [the] grave condition and the urgent necessity for treatment to protect
life and health. ’35 However, the caselaw does not explicitly hold that this
is the only reason, and to accept impossibility as the only reason blindly
prejudges the case –
and wrongly so if we can find independent reasons
for not requiring consent in emergencies. It is true that this doctrine arose
in cases where it was not possible to obtain consent. But this is a good
reason for thinking that the reasons, as enunciated in those cases, may not
be complete, since with one obvious reason before the courts, there was no
need to look for further justification. To do justice in novel situations, how-
ever, we should not discard good reasons underlying principles of common
law, merely because a particular reason had not occurred to the judge who
first enunciated the principle.
8. The Reasonable Person
To discover other reasons for not requiring consent in emergencies, we
may ask ourselves how was it that Dr. Shulman, certainly a competent
doctor, and presumably not markedly irrational, could come to a conclusion
which was judged “not rationally founded”. Donnelly J. provides us with
an answer. He says: “Dr. Shulman was confronted by profound imponde-
rables with no time for reflection. There was no established precedent upon
which to rely. The subject-matter in issue was controversial, emotional and
related to life and death decisions. ‘ 36 The fact that this was a life and death
emergency was adverted to in the post facto court-room analysis, but it
seems to have received little consideration. Perhaps Dr. Shulman’s opinion
as to the validity of the card was not rationally founded on the evidence,
but in the circumstances, could we expect it to be? Even if a reasonable
person would retrospectively have concluded that Mrs. Malette would not
35Supra, note I at 270.
36Ibid. at 275.
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have wanted blood, can we believe that most reasonable people would have
come to that conclusion at that time, when faced with this “dilemma of
dreadful finality”? 37
We may compare the reasonableness of Dr. Shulman’s legal judgement
in this situation with that of judges in similar circumstances. Apart from
the case of Dorone, at least sixteen 38 American cases have been reported
which deal not with an undated card, but with conscious and immediate
refusal by patients (only -two of whom were found not to have been fully
competent) to accept blood. In eleven of these cases, the justices who made
the life or death decision ruled that transfusions be given despite the patients’
wishes. Some of these cases may be plausibly distinguished because the
patient was pregnant, or the mother of a dependant child, or possibly non
compos mentis. Nonetheless, the judgements in emergency cases, where the
judge had to make a decision at the patient’s bedside, are revealing as to
their true motivations: “The final, and compelling, reason for granting the
emergency writ was that a life hung in the balance”; 39 “Therefore, this
Court… ‘determined to act on the side of life’ in the pending emergency.”; 40
“since death would likely follow unless a transfusion was authorized…”; 41
“I could not let her die!” 42 It seems likely that the so-called distinguishing
factors are not so much reasons as excuses for choosing life over death in
emergency situations.
371bid. at 267.
38(1) Cases involving parents. (i) Application for order to allow transfusion granted in first
instance: Application of President and Board of Directors of Georgetown College, 331 E 2d 1000
(1964), rehearing en banc denied, 331 E 2d 1010(1964), cert. den., 377 U.S. 978 (patient possibly
non compos mentis); Hamilton v. McAuliffe, 353 A. 2d 634 (1976); Powell v. Columbian Pre-
sbyterian Medical Centre, 49 Misc. 2d 215, 267 N.Y.S. 2d 450 (1964); Crouse Irving Memorial
Hosp. v. Paddock, 127 Misc. 2d 101, 485 N.Y.S. 2d 443 (1985); Mercy Hosp. Inc. v. Jackson,
510 A. 2d 562 (1986); Wons v. Public Health Trust of Dade County, 500 So. 2d 679 (1987)
(order granted in first instance, reversed on appeal, despite the fact that transfusion had already
been made). (ii) Application to allow transfusion denied in first instance, reversed on appeal:
Raleigh Fitkin-Paul Memorial Hosp. v. Anderson, 201 A. 2d 537 (1964), cert. den. 377 U.S.
985.(2) Cases not involving parents. (i) Order to allow transfusion denied in first instance: In
re Osborne, 294 A. 2d 372 (1972); Erickson v. Dilgard, 44 Misc. 2d 27, 252 N.Y.S. 2d 705
(1962); In reMelideo, 88 Misc. 2d 974, 390 N.Y.S. 2d 523 (1976); St. Mary’s Hosp. v. Ramsey,
465 So. 2d 666 (1985). (ii) Order to allow transfusion allowed in first instance, reversed on
appeal: In Brooks’Estate, 32 Ill. 2d 361, 205 N.E. 2d 435 (1965); In reBrowvn, 478 So. 2d 1033
(1985); Homes v. Silver Cross MemorialHosp., 340 ES. 125 (1972) (motion to dismiss complaint
for having ordered transfusion denied). (iii) Order granted in first instance: U.S. v. George, 239
ES. 752 (1965); John F Kennedy Mem. Hosp. v. Heston, 42 N.J. 421, 279 A. 2d 670 (1971)
(patient may not have expressed conscious refusal of blood, but decision is clear that, in the
circumstances, the order would have been made even if she had).
39Application of Georgetown College, 331 E 2d at 1010.
40U.S. v. George, 239 ES. at 754.
41Hamilton, 353 A. 2d at 635.
42Powell, 267 N.Y.S. 2d at 452.
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While a number of cases affirm the right of a competent patient to
refuse blood, two cases stand for the opposite proposition. 43 And as we are
not searching for authority, what is perhaps more instructive is that, at first
instance, the decisions were five to four in favour of allowing the transfusion
even for patients without dependent children. Perhaps the only lesson
we can draw is that it is very difficult to make a life and death decision
when the results will be felt within hours. Only in the clearest of circums-
tances, with time for reflection, will a judge decline to allow a transfusion,
and even then he or she may sometimes balk.
We see that judges, whose profession is balancing competing claims,
regularly order blood transfusions, even after discussion with competent
patients who refuse to assent. In so doing, judges make emotionally laden
statements. Such statements are not an aberration, but are quite normal in
the circumstances. Some impairment of judgement in an emergency is not
an idiosyncratic or self-induced phenomenon (like inebriation), but rather
part of the make-up of even the most reasonable people.
If we can understand a lapse by a judge in making legal decisions of
such finality under pressing time constraints, should we not be even more
understanding in the case of a doctor, who is already preoccupied with
critical medical decisions and not professionally trained to make legal de-
cisions? Doctors are trained to react medically in an emergency, and so to
demand good medical judgement in such situations is reasonable. To de-
mand simultaneously a judicial decision about a complex legal and ethical
question is not. In a case of self-defence, where justifiable fear might si-
milarly cloud one’s judgement, it is said that one need not judge with nicety
the force of one’s blow; why then is Dr. Shulman required to judge with
nicety the legal issues he faced? Shortly put, there is no human standard by
which we can say that Dr. Shulman “should have known better”. Dr. Shul-
man’s decision may, in hindsight, have been irrational, but it was not
unreasonable.
The strongest reply to this would be to say that this is not an action
for negligence, and that what is at issue is not whether the defendant fell
below any standard, but whether there was a refusal of consent, which is
simply a question of fact. Yet the law has progressed from the days of strict
liability. Professor Williams tells us, in the case of Stanley v. Powell,44 that
“the tort of trespass was placed securely on the basis of fault. ’45 In the usual
[1891] 1 Q.B. 86.
43U.S. v. George, 239 ES. 752, and Kennedy Mem. Hosp. v. Heston, 279 A. 2d 670.
-(1890),
45G. Williams & B.A. Hepple, Foundations of Tort, (London: Butterworths, 1976) at 47. Note
that this is clearly not a case in which the modem risk-sharing justification for strict liability
is applicable.
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battery cases, issues of reasonableness do not arise because the fault is found
in the intention itself. Without begging the question we cannot say the same
in the present case. Despite similarities of contact and consent, we must
recognize that the intention and the duty of a physician to help his or her
patient create a substantial difference between medical treatment and a
fistfight. The Supreme Court implicitly recognized this in Reibl, finding that
the action of battery is not appropriate in a medical context, except when
egregious breaches of duty by the physician are involved.
In any case, the requirement of consent is already enmeshed in ques-
tions of reasonableness. The leading case on what constitutes consent,
O’Brien v. Cunard SS. Co.,4 6 held as follows: “in determining whether the
act was lawful or unlawful, the surgeon’s conduct must be considered in
connection with the surrounding circumstances. ’47 In other words, this
“matter of fact” question of consent reduces to the question of how rea-
sonable persons would conduct themselves in like circumstances. It is an
artificial and arbitrary sort of objectivity which would ignore those aspects
of the circumstances tending to obscure the doctor’s legal judgement and
simply assume that he can make his decision in what the court deems a
completely rational manner. While of necessity we judge in hindsight, when
we apply the standard of the reasonable person, we are asking what a rea-
sonable person would have done at the time, not what he or she would have
done in hindsight.
It may be objected that this argument leads to the conclusion that in
certain situations there is no “matter of fact” as to whether there is consent,
because reasonable people would not be able to make competent judge-
ments. Hence, the usual “reasonable person” standard must be modified,
even arbitrarily, so as not to allow this conclusion. This argument reinforces
the view being urged in this paper. Recall that we are trying to determine
what good reasons there might be for accepting a liberal interpretation of
the doctrine that emergencies should be an exception to the requirement of
consent. That it allows us to remain consistent with precedent rather than
tampering with the reasonable person standard is one such reason; that
reasonable people cannot decide whether consent is present is another.
To explain the rule that consent is not required in medical emergencies,
as founded only on the impossibility of obtaining consent, is, in a sense,
not to explain it at all. This reasoning gives no guidance in the crucial
question of how to decide whether there has been legally sufficient consent.
To answer this question by saying that consent or refusal is present if a
reasonable person would so determine in hindsight, is an arbitrary departure
46154 Mass. 272, 28 N.E. 266 (1891).
470’Brien, 28 N.E. at 266.
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from the reasonable person standard used in non-emergency cases. It also
results in the drawing of an arbitrary line which would brand as an inten-
tional tortfeasor a doctor who was behaving reasonably in the circumstances.
This line of reasoning goes against both the trend of modern tort law and
the thrust of the Supreme Court decision in Reibl.
An alternative, prompted by the above discussion, is to view this rule
simply as a crystallization of the requirement that people act reasonably in
their relations with others, rather than as an exception to the usual require-
ment of consent. This approach grounds the rule (that consent is not re-
quired in emergencies) in fundamental principles of tort law, and provides
a useful context for discussion as to what constitutes “consent” or “emer-
gency” in various fact situations. To accept this interpretation would not
require disrupting precedent, as all possible respect for the wishes of the
patient is naturally part of what is meant by reasonable behavior. Indeed,
it echoes the view that a surgeon may perform an unauthorized procedure
if he discovers an unforseen problem in the course of an operation, only if
it would be “unreasonable” and not merely “more convenient” not to do
SO.48
9. Public Policy
Of course, the courts do not simply apply the reasonable person stan-
dard; they also, in part, set it. It is therefore necessary to ask not only whether
a doctor faced with a major emergency is in any position to make a good
judgement as to whether there has been a valid consent or refusal, but also
whether, as a matter of policy, we wish him to try.
Donnelly J. says that the correct choice in this case is so difficult to
determine that “the final answer will not be known until this litigation runs
its full course.” 49 What if the final answer is that the card was open to valid
doubt? Can we countenance a legal system that insists doctors come to
certain conclusions on such difficult questions in emergency situations when
a judge cannot do so in the peace of the courtroom? This demand is not
only unreasonable, it is impossible in situations where the time for reflection
will let death, rather than the facts, decide the issue.
As the results of this case become more widely known, doctors may
begin to hesitate in similar circumstances – when, for instance, someone
is thought to be a Jehovah’s Witness but has no card. Even if the doctor
would have been vindicated in the end, his knowledge that he must not
48See, Murray v. McMurchy, [1949] 1 W.W.R. 989, [1949]2 D.L.R. 442 (B.C.S.C.). Of course
this point is largely moot today, as modem release forms generally authorize any procedure
the surgeon finds advisable.
49Supra, note 1 at 275.
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only use his best judgement in the circumstnaces, but also arrive at the
legally correct conclusion or face liability, could cause a delay in acting, a
delay which could cost the life of someone who would have not objected
to the transfusion. This concern is graphically illustrated in at least one case,
in which an infant died because of the delay in giving a transfusion occa-
sioned by the necessity of getting a court order to allow the transfusion in
the face of the parent’s objections. 50
Another point of policy raised in several of the American cases is well
stated in Kennedy Memorial Hospital v. Heston.51 The Supreme Court of
New Jersey noted that “the medical and nursing professions are consecrated
to preserving life. That is their professional creed. To them, the failure to
use a simple, established procedure in the circumstances of this case would
be malpractice, however the law may characterize that failure in light of the
patient’s private convictions. The hospital and its staff should not be re-
quired to decide whether the patient is or continues to be competent, or
whether the release tendered by the patient or a member of his family will
protect the hospital from civil responsibility. The hospital could hardly
avoid the problem by compelling the removal of a dying patient…. ‘ 52 Mrs.
Malette may have felt “very dirty” after surviving her ordeal, but how would
Dr. Shulman have felt if he let her die? The medical ethic creates moral
imperatives which may well be felt as strongly as religious ones, and we
should not belittle the importance of these values merely because they are
labelled secular. We see then that there are good reasons, both in law and
public policy, for not requiring consent in certain emergency situations.
These reasons are independent of the impossibility of obtaining consent.
The question is now clearly one of balancing this principle with the right
to control one’s body. To do this, we must consider the strength of this right.
10. Right of Refusal
Mr. Justice Cardozo’s famous statement of the right of an adult to
determine what shall be done with her body was strong, but not categorical.
To elevate it to a position of absolute supremacy is a device of rhetoric
which conceals a radical position which the law, as the practical forum of
moral balancing, must avoid. Theoretical objections to such absolutism are
reinforced by legal and societal decisions which demonstrate that, as a prac-
tical matter, society has long entrenched restrictions on a person’s control
over her body.
5
0Wolfe v. Robinson (1961), [1962] 1 O.R. 132, 31 D.L.R. (2d) 233 (C.A.).
51Also in Georgetown College, 331 E 2d at 1009, and U.S. v. George, 239 ES. at 754.
52John F Kennedy Mem. Hosp. v. Heston, 279 A. 2d 670 at 673 (1971).
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For instance, the American precedents in Jehovah’s Witness cases have
indicated that concern for the well-being of a young or unborn child is
grounds for ordering blood transfusions against the patient’s will. Another
obvious case of balancing rights and duties arises in the context of abortion.
Despite the claim that a woman has a right to do as she wishes with her
body, there is no question of simply dismissing the argument of anti-
abortionists on this basis alone. In R. v. Morgentale, the Ontario Court of
Appeal, specifically referring to Mr. Justice Cardozo’s remark, commented
that “even such fundamental rights are not absolute. ‘ 53
Suicide is a third example. While it has recently been removed from
the Criminal Code, the common law has long held that one’s right over
one’s body does not extend to taking one’s own life. While a suicide attempt
is at least as powerful an indication of the patient’s intentions towards her
own body as “the card” is in Malette, a doctor will not be held liable for
preventing a suicide, and in some circumstances may be under a duty to
do so, even in jurisdictions where suicide is no longer an offence. 54
A final example are drug offences, which are crimes notwithstanding
that they prevent a person of adult years from doing with her body as she
sees fit. These simple examples make it clear that Justice Cardozo was only
setting forth a right which must always be considered, not one which must
always triumph.
11. Sanctity of Life
A common thread running through these examples is the following: in
situations involving life and death, society is most ready to restrict a person’s
right to control her body. This reflects a presumption in favour of the sanctity
of life which exists both in law and in society at large. While there are a
number of possible reasons for preferring death to life, and Donnelly J. lists
“patriotism in war, duty by law enforcement officers, protection of the life
of a spouse, son or daughter, death before dishonour, death before loss of
liberty, or religious martyrdom”, 55 we note that those who act on such beliefs
are usually considered heros or martyrs. The use of such encomiums suggests
that the mass of humanity does not fall into these categories. In two Ame-
rican cases, the court found that the patient did not object to life-saving
transfusions, but simply did not want to authorize them. We see that if Dr.
Shulman erred in doubting the card, it was not an arbitrary error, but one
based on the widespread presumption in favour of life. Society’s bias in this
53(1985), 52 O.R. (2d) 353 at 377, 22 D.L.R. (4th) 641 at 655.
54See, Skegg, Law, Ethics and Medicine (Oxford: Oxford University Press, 1984) at 110-12,
155-57.
55Supra, note 1 at 272.
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respect suggests that we not presume that someones wishes to be a martyr,
except in the face of the clearest of evidence.
This is emphasized in the American case of In Re Osborne,56 the most
widely reported case upholding the right, in certain circumstances, of a
competent adult to refuse a blood transfusion on religious grounds. The
language used in defining the right to refuse blood is cautious and restrictive.
The court in Osborne stressed the importance of a meeting with the patient,
by a judge, in order to make the best possible assessment of the patient’s
wishes. The court also noted that “where the patient is comatose, or suffering
impairment of capacity for choice, it may be better to give weight to the
known instinct for survival which can, in a critical situation, alter previously
held convictions. ‘ 57 Although the court affirmed a right to refuse blood, it
also recommended procedural and presumptive safeguards to make sure
that any error is made in favour of preserving life. A broad interpretation
of the emergency exemption from the consent requirement is similarily
biased.
12. Rights of Jehovah’s Witnesses
What of the rights of Jehovah’s Witnesses and others who may wish
to refuse certain forms of medical treatment? Do they have no rights in
emergencies, so that a doctor may proceed with treatment even in the face
of a conscious and competent refusal? Besides the unpalatability of such a
conclusion, such an exemption inevitably leads to disputes over categori-
zation. It could be said that I have only shifted the question from “What
is consent?” to “What is an emergency?”
However, I have not been arguing that the exemption from the consent
requirement in emergency situations should be an absolute rule. Rather, it
should be viewed as based on a requirement of reasonableness. We might
then say that an emergency is a situation in which it is unreasonable to
expect a doctor to fully weigh the issues of consent; the doctor should do
whatever it is reasonable to do. This is not intended to be facetious. Rather,
it emphasizes that what is at issue is reasonable behavior, not definitions
of words. The concepts of emergency and consent will be the focus of the
debate, but they must be defined with regard to what is reasonable in the
given context.
The meaning of “reasonable” is itself highly dependent on context. In
a society in which life was the ultimate good, there would never be any
doubt as to the reasonableness of administering life-saving treatment. But
56294 A. 2d at 373.
57Ibid. at 374.
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I fully agree, for reasons given by Donnelly J and others,58 that adult Je-
hovah’s Witnesses have the right to refuse life saving blood transfusions for
religious reasons, and that they continue to have this right in emergencies.
I prefer to characterize the issue not as about the right to refuse treatment,
but about the possibility of communicating this refusal.
13. Reasonableness in Emergencies
Communication is not simply a matter of words, but of context as well.
A shared language is the most obvious requirement for effective commu-
nication, but accompanying actions, and the immediate and social contexts,
can all affect the message. For instance, in U.S. v. George59 a patient refused
to authorize a transfusion. A judge called to the bedside explained that even
if he signed the authorizing order, the patient could still prevent the trans-
fusion by simply placing his hand over the area where the needle was to be
inserted, and force or restraint would not be used to administer the trans-
fusion. The patient indicated that if the order was signed, his conscience
would be clear and he would not resist the transfusion in any way. Had he
refused the transfusion? It was apparent that the patient did not want to
die, nor did he want a transfusion. What is communicated by such contra-
dictory messages? It is too simplistic to say that the patient refused because
his answer to the direct question was “no”.
In the present case, the communication problem arose not because the
patient had not done everything she could to make her wishes known, but
because the message was a difficult one to transmit. “You must be joking”
is a common, and often correct, response to a claim which deviates widely
from what is normal or expected. More than a simple statement would be
required for most people to convince us that she or he could run a four
minute mile, or would pay ten thousand dollars for an antique tea-cup. Mrs.
Malette was notjoking, but Dr. Shulman’s reliance on a societal presumption
in favour of life in deciding that the card did not communicate a desire to
die before accepting a transfusion, but was rather a sign of solidarity with
her co-religionists, is a normal use of context in communication. More effort
is required to communicate such an unusual message, and the emergency
made further explanation impossible. “Consent” and “emergency” are in-
terrelated terms not susceptible of independent definition.
58See R. Kouri, “Blood Transfusions, Jehovah’s Witnesses and the Rule of Inviolability of
the Human Body” (1974) 5 R.D.U.S. 156. I have cited American cases which suggest that the
interest of the state in insuring that a child has a mother is sufficient to override a refusal of
consent, in order to illustrate the difficulty of making judgements in such difficult cases. I am
not endorsing these cases but rather I suggest that they stretch to the limit, if not beyond,
justification for such state interference.
59239 ES. 752.
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14. Effective Refusal
The most objectionable aspect of the argument so far advanced, cer-
tainly to a Jehovah’s Witness, is that it allows no form or card which would
unchallengeably constitute a valid refusal in emergency situations. But “va-
lid refusal” is a somewhat misleading phrase. All a legally valid refusal would
assure is that a Jehovah’s Witness could sue successfully. It would take a
practically effective refusal to insure that no blood transfusion took place,
which presumably is the aim of the Jehovah’s Witnesses. I suggest that a
legally valid refusal, and a practically effective refusal, should coincide.
How do we decide what should be reasonably effective? Since context
is so important, any strict and easily applied rule would be tidy, but would
likely be unreasonableness in the face of novel situations. In Dorone, the
Superior Court of Pennsylvania recognized this. It held that whether the
evidence that the patient would refuse a transfusion was of such quality
that the court should not allow the transfusion, was “not an abstract ques-
tion, it can only be answered in the context of the particular facts that
confronted the court.”’60 The court was willing to consider all circumstances
surrounding the card and the religious beliefs of the signer before making
its decision. Moreover, the Court did not state that a card in conjunction
with such evidence could never be sufficient grounds for not ordering a
transfusion. Unfortunately, on appeal, the Supreme Court of Pennsylvania
said that in an emergency “nothing less than a fully conscious contempo-
raneous decision by the patient will be sufficient to override evidence of
medical necessity”. 61
To see how this rule might be too inflexible, consider alternate means
by which Jehovah’s Witnesses might communicate their wishes. If a preg-
nant Jehovah’s Witness anticipated difficulties at birth, she might discuss
at length with her doctor the firmess of her objection to transfusions. If an
emergency did arise during the delivery, the doctor should not be excused
for not respecting her wishes, even if the patient were unconscious. In a
small community a group of Jehovah’s Witnesses might go to the local
hospital and explain personally the firmness of their religious objections to
blood transfusions. If soon afterwards a member of this group were brought
in, unconscious but carrying a card, as was Mrs. Malette, we might reaso-
nably require that no blood be given. 62 To require a conscious contempo-
60502 A.2d at 1275.
61534 A.2d at 455 (original emphasis).
62This should also prevent the hospital administration from shirking responsibility for ma-
king the decision. We might well require more sensitivity from the administration when faced
with a refusal of transfusion, since the administration would be burdened neither with making
an immediate medical decision, nor with intimate involvement with the patient.
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raneous refusal would create a divergence between what we reasonably
believe to be the true wishes of the patient, and the legally effective wishes,
thereby not only allowing the doctor to proceed when she should not, but
exposing her to liability for not doing SO. 6 3 We should also recognize that
in a more ambiguous situation, as in this case or Dorone, there is no one
reasonable decision. If it is reasonable to make a mistake in determining
the true wishes of the patient, it could not be less reasonable to decide
correctly.
To give legal force to a specific type of refusal card, would separate legal
validity from effectiveness in a slightly different way. It would favour the
Jehovah’s Witnesses at the risk of being unreasonable to the doctor, as in
the present case. And while it would theoretically prevent future transfusions
by acting as a deterrent, in practice, it would at most lead to a generalized
fear of legal consequences, which would most likely both prevent action in
cases where it was demanded and not prevent transfusions in cases where
the refusal was legally valid.
It may be said that this is always a problem with the deterrent role of
tort law, and that a sharp and somewhat arbitrary line is always drawn by
the courts. In this case, however, we are not drawing distinctions between
reckless behavior and unacceptably reckless behavior, in which a blunder-
buss deterrent will not do much harm. Rather, we are dealing with different
judgements of how best to behave in the face of strong and conflicting
demands. To condemn marginally acceptable behavior is very different from
second-guessing choices based on values lauded by society and by the health
care system. A pressing case is needed before the courts should discourage
these values. That no such case is present in medical emergencies is em-
phasized by the difficulty of ascribing damages. There is no obvious suffering
which cries out for compensation, thereby buttressing a weak deterrence
argument, as is the case in the wrongful life claims.
15. The Final Balance
In this paper, I have argued that consent is not required for a doctor
to treat a patient in a medical emergency, and that this exemption should
be seen not as an exemption from the general rule based on the impossibility
of obtaining consent, but as a crystallization of the general principle that
63Fear of liability in such circumstances is not entirely fanciful; see Randolph v. City ofNew
York, 501 N.Y.S. 2d 837, which reversed the trial judgement for malpractice against a doctor
who did not give blood to a patient who had refused consent to a transfusion (the patient died
as a result). The possibility of liability does not arise from not administering medically indicated
treatment that the patient would not consent to, but from the possibility that the patient might
not have legally refused consent.
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people must act reasonably in their relations with others. This view does
not involve changing the present law, and would not dictate a different result
in any of the established medical consent cases. It is simply an elucidation
of a well-established principle which applies primafacie in the present case.
Reasonableness must include respect for the wishes of the patient and
of her right to refuse treatment. However, in a pressing emergency, such as
that faced by Dr. Shulman, it seems clearly unreasonable, especially in view
of the reaction of judges when faced with conscious and contemporaneous
refusals, to ask a doctor to overcome training and instinct to rely on a refusal
card, even if it would seem in retrospect to represent the true wishes of the
patient. On the other hand, to go beyond the circumstances of this case and
set forth a general rule as to what constitutes a valid refusal, runs the risk
of hampering the reasonable exercise of the physician’s judgement by fear
of malpractice liability on the one hand, and battery on the other.
The problem which has arisen in Malette is a result of a basic conflict
between the values of the Jehovah’s Witnesses, who do not wish blood
transfusions, and those of the community as a whole, which systematically
insists on the importance of life. The system should accommodate both
views as far as possible, but there comes a point when basic values clash
irreconcilably. The decision of Donnelly J. implicitly tries to have it both
ways, making a scapegoat of Dr. Shulman in the process. Instead, we should
recognize the conflict, and if it is indeed irreconcilable in some circums-
tances, we must decide in favour of life.
As a matter of policy, we do not want doctors hesitating in the emer-
gency room through fear of the law, and as a matter of justice, we must not
punish someone for making a difficult and honest choice, especially when
the “error” was to save a life. The final paragraph of the decision in Ap-
plication of President and Directors of Georgetown College, in which the
judge himself faced the same dilemma as Dr. Shulman, recognizes these
considerations. Perhaps if Donnelly J. also had had to make the crucial
decision, and not simply pass judgement on it afterward, his decision would
have read similarly:
The final and compelling reason for granting the writ was that a life hung in
the balance. There was no time for research and reflection. Death could have
mooted the cause in a matter of minutes, if action were not taken to preserve
the status quo. To refuse to act, only to find later that the law required action,
was a risk I was unwilling to accept. I determined to act on the side of life. 64
64331 E2d at 1009-1010.
