No lack of informed consent in baby blood case

In L.D. (Guardian ad litem of) v. Provincial Health Services Authority 2011 BCSC 628, Mr. Justice Sewell heard an application by the Authority for an order pursuant to Rule 9(6) dismissing a proposed class action dealing with the collection and storage of blood samples for newborn infants in BC.  The action alleges that the blood samples taken to detect 22 medical conditions and retained by the Authority until children were 10 years old, were obtained as a result of negligent and/or fraudulent concealment of material facts and that the taking and storage of the samples constituted an unlawful seizure contrary to section 8 of the Charter.  The action sought s.24 Charter damages as well as damages for fraudulent/negligent misrepresentation, breach of fiduciary duty and inducing breach of fiduciary duty, and for breach of the Privacy Act.

The Court found that the Authority's failure to disclose its intention to retain the blood samples after testing did not vitiate the legal guardians' consent to the initial collection of blood samples.  This finding was made based upon the law relating to failure to make disclosure of an incident to a medical procedure which would vitiate consent to such medical procedure.  Applying the modified objective test, the Court found that any reasonable person in the position of the infants' legal guardians would have consented to the collection and initial testing of the blood samples, even if they had been informed of the Authority's intention to store the samples in accordance with its policy.  The Court dismissed the argument relying upon Norberg v. Wynrib that consent can be vitiated if there is anything in the relationship between the parties that amounted to a power imbalance sufficient to conclude exploitation of the plaintiff by the defendant, given that in this case there is no fiduciary relationship between the Authority and the infant plaintiffs with respect to the collection of blood samples.

In considering whether the retention of blood samples after testing raises a genuine issue for trial, the Court noted that it is well settled law that any consent to the taking of a sample of bodily fluids by medical practitioners must be presumed to be consent only for the use of that sample for medical purposes.  The Court found that a reasonable person in the objective position of the plaintiffs would have consented to the storage of the blood samples if they had been informed that access to the blood samples would be clinically useful to that patient for a period of time.  A patient that has a particular concern about a medical procedure should bring that concern to the attention of the medical practitioner so that the concern can be addressed.

While the Court found that there were no triable issues with respect to the tortious and other unlawful conduct allegations, including the claim for Charter damages, the Court recognized that there could be  triable issues with respect to the use that the Authority may appropriately make of the blood samples after the initial testing, apart from their use for medical purposes directly related to the health of the infant, and whether the Authority assumed fiduciary obligations when it obtained the samples and breached that duty.

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