Insurer medical examinations and assessments are a vital tool in accident benefits adjusting and in the defence of any personal injury law suit. Given the purpose for these assessments, a unique doctor-patient relationship arises, which can create difficulty when it comes to patient consent. In particular, whether the claimant must consent to such assessments and the nature by which they do so can become an issue. This article serves to highlight how decision-makers have dealt with this issue in the context of court-ordered medical examinations in the litigation process, and insurer assessments in the accident benefits context.
Tort Defence Medicals
Two decisions of Justice Valin speak to the issue of consent with respect to court-ordered medical examinations, pursuant to Section 105 of the Courts of Justice Act and Rule 33 of the Rules of Civil Procedure. In each case, the Plaintiff claimed damages for personal injuries sustained as a result of motor vehicle accidents.
In Chapell v. Marshall Estate,1 the Defendant brought a motion to compel the Plaintiff to attend two defence medical exams. The Plaintiff took issue with signing the consent forms provided by each of the assessors. At issue in this case was whether a Plaintiff is required to sign any consent, authorization, or agreement demanded by a health practitioner when attending a court-ordered defence medical exam. Justice Valin noted there is no such explicit requirement in either Rule 33 or Section 105. The role of the doctor in a courtordered medical exam was distinguished from the role of a doctor in a typical doctor-patient relationship. In particular, it was noted:
In conducting a defence medical exam, a doctor or other health practitioner is not operating within the bounds of the traditional doctor patient relationship where the doctor has been engaged by the patient whose trust and confidence in the doctor are essential to their relationship. Instead, the defence medical exam takes place in the context of an ongoing legal dispute where the examinee’s adversary has 1  O.J. No. 3009. retained the examining health practitioner. The examining health practitioner is not subject to the usual confidentiality requirements which are essential to the doctor-patient relationship. Indeed, the examining health practitioner’s very purpose is to report their findings to the examinee’s adversary.
Justice Valin concluded a Plaintiff is entitled to refuse to sign any authorization, consent or agreement presented to them by an examining health practitioner in those circumstances.
In Tanguay v. Brouse,2 the Plaintiff agreed to attend three defence medical assessments, however, on advice of counsel, he refused to sign the consent documents given to him by the assessor and the assessor declined to conduct the assessment. A motion was brought before Justice Valin to determine whether a party could refuse to sign a consent the examiner deems necessary before a Rule 33/s.105 examination is to proceed.
The Defendant tried to distinguish this case from Chapell on the basis that here, there was no court order for an exam; the Plaintiff simply agreed to attend. Justice Valin rejected this argument, indicating that Rule 33.08 implies that consent medicals are to be treated the same as court-ordered medical exams. Again, it was concluded that the role of the doctors conducting defence medical assessments are distinguishable from the role of doctors in a traditional doctor-patient relationship. As a result, an exam conducted pursuant to Rule 33/s.105 enables a health practitioner in Ontario to carry out the exam and report the findings to the Defendant, without fear of successful prosecution for professional misconduct based on the absence of written consent.
Accident Benefit Medical Assessments
In contrast, the recent decision of FSCO Arbitrator Wilson in Luther v. Economical3 determined an assessment under s.42 of the SABS will not be treated in the same manner as an exam in the tort context. Here, the insured was injured in a motor vehicle accident and subsequently applied for and received certain accident benefits. The insurer required him to attend medical assessments to determine his on-going entitlement to benefits. Although the Claimant attended the exam, he refused to sign the written consents presented by the assessors. The Insurer ceased paying benefits pursuant to SABS s.37(7). The Insurer eventually found other assessors who agreed to conduct the exams using a modified consent form and these assessors determined the Claimant was entitled to benefits, which were subsequently reinstated. At issue, was whether the Insurer could deny benefits for the period between the first and second scheduled assessments pursuant to SABS s.37(7).
The Claimant argued, as in the case of Rule 33/s.105 examinations, written consents to exams mandated by SABS s.42 are superfluous and not required. However, Arbitrator Wilson refused to adopt the Chapell/Tanguay rationale in the SABS context.
Arbitrator Wilson distinguished the exams under the two regimes on a number of bases. First, the Rule 33/s.105 exams relate to court orders, while the SABS s.42 exams represent a mandatory request under a private contract of insurance. This was a key distinction for Arbitrator Wilson, as he found it unrealistic to expect a medical practitioner to conduct an exam without casting their mind to the authority under which it is undertaken. Although a court order provides enough bases to eliminate the need for patient consent, SABS s.42 does not reach the same level. Second, the penalty for refusing to attend such exams differs. Failure to attend a Rule 33/s.105 exam can result in prosecution for contempt of court, while failure to attend a SABS s.42 exam results in the mere suspension of benefits until the claimant makes themself available. Third, a Rule 33/s.105 exam implies an adversarial relationship between the parties, while a SABS s.42 assessment is conducted in the context of a first-party insurance scheme in which no such relationship is implied. Finally, the provisions can be interpreted differently due to their differing purposes. The purpose of a SABS s.42 exam is to determine entitlement to benefits, whereas a Rule 33/s.105 exam is designed to extend the discovery process in litigation.
Based on the foregoing, Arbitrator Wilson refused to apply Justice Valin’s reasoning to a SABS s.42 assessment. He accepted that it is reasonable for an examiner to ask for a generalized consent before undertaking a SABS s.42 exam and to document that process.
Despite this, Arbitrator Wilson held on the facts of this case that Mr. Luther did consent to the examinations, just not in the manner requested by the assessors. He found the consent forms requested in this particular case were inappropriate and Mr. Luther was reasonable and prudent in his refusal to sign. The consent forms Mr. Luther was presented with contained a waiver of liability clause, which Arbitrator Wilson stated was not in accordance with the purposes of the SABS. He further commented that consent forms used by assessors vary widely, and as the assessments are conducted under the insurers’ authority, it is surprising there is no insistence on some uniformity. As verbal consent was given, and as alternative written consents were presented by Mr. Luther to the insurer, Arbitrator Wilson found Mr. Luther could not have been said to have refused or failed to attend the exam for the purposes of SABS s.37(7), and the insurer was not at liberty to discontinue benefits. The insurer was required to pay Mr. Luther the benefits he was entitled to during the period between the first and second assessment.
Current law, as it stands in Ontario, is consent – written or otherwise – is not a requirement for a defence medical conducted in the context of a tort claim. The authority of the court is enough to enable the medical practitioner to carry out the assessment and provide the results to the Defendant, without the need for consent. On the other hand, medical examinations conducted under SABS s.42 still require consent to be given, however that consent may be given verbally or through the signing of a general consent. Elaborate consent forms can be refused by the insured and this refusal may not constitute a failure to attend in order to trigger a suspension of benefits under SABS s.37(7).
It is notable not all jurisdictions have taken the same approach. In a recent case of the British Columbia Supreme Court,4 a Plaintiff verbally consented to attend a medical exam but refused to sign the consent, which included a limitation of liability clause similar to that found in the Luther case. Here, the court compelled the Plaintiff to sign the consent form and undergo the exam. The implied consent given by attending the exam was deemed withdrawn by refusing to sign the consent. Without consent, the assessor would be open to charges of assault and battery. Thus, rather than compelling the Plaintiff to attend the exam with or without consent as the court does in Ontario; the BC court requires the Plaintiff to sign a written consent.
Medical practitioners in Ontario performing exams pursuant to SABS s.42 must be aware that, unlike Rule 33/s.105 exams, they are not protected from allegations of professional misconduct resulting from lack of consent. Verbal consent, in the presence of witnesses and recorded in their records, appears to be the minimum that should be accepted in order to conduct the examination.
Insurers must also be aware that accident benefits should not be suspended if the claimant raises an issue with an assessor’s written consent form. The insurer has a duty to work with the claimant to find a suitable consent or alternative assessor, and to vet the policies of their chosen assessors with respect to intake procedures.