Paul McGivern was interviewed by Lawyers Weekly on the significance of the recent decision of the Supreme Court of Canada in the case that he argued. The decision was important in two respects: it clarified the threshold for rebutting the presumption of judicial integrity and impartiality and raised the bar for physicians in terms of explaining the risks of the proposed procedure when obtaining informed consent from patients.
The Supreme Court of Canada essentially confirmed, in Paul’s words, “that trial judges are entitled to rely on the lawyers that appear before them, and are entitled to rely on the written submissions that counsel make. They’re entitled to copy from those submissions, and put them into their judgments. But the more complex the case, the more the judge is encouraged to put the reasons into their own words”.
On the issue of informed consent, the decision, according to Paul, “emphasizes the need for physicians to explain to their patients exactly what they’re going to be doing, what the risks are, and most importantly what the potential consequences are if the risk that the procedure entails actually materializes. In other words it isn’t enough to say ‘there might be a uterine rupture.’ You actually have to explain to the patient what that means, in real terms, for the patient. And in this case, what it meant, was it would be unlikely at best that they could rescue the child before brain damage set in.”
