A series of cases around informed consent for medical treatment gives us some idea of the types of inquiry that can be made to see if a person has limited literacy skills. They are also helpful in suggesting markers that administrative tribunal members might look for in their day-to-day operations.
Canadian courts have identified several criteria necessary for valid consent. The most important for our discussion is that the client must be informed. Patients have a legal right be warned of all material risks inherent in a given procedure or treatment, the consequences of leaving the ailment untreated, alternative means of treatment and their risks, and the cause of the injury suffered by the plaintiff. More important, this critical information must be passed along to the patient in words that the patient, considering language skills and education, can understand. Prior to the decision in Reibl v. Hughes (1980), 114 D.L.R. (3d) 1 (S.C.C.), one of the leading cases in the area of informed consent, there was some doubt as to whether the doctor had the duty to ensure that he was understood by his patient. However, Laskin C.J. made it quite clear in that case that it is incumbent on the doctor to make sure that he is understood, particularly where it appears that the patient had some difficulty with the language spoken by the doctor.