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10/6/2014

HEALTH CARE LAW:


Law 3101 & Health Sciences 3101
WINTER TERM,, 2015

R. Solomon, Professor
The Faculty of Law
Western University

Chapter II: Consent and Capacity (Competency)


Overview

Common Law Principles of Consent.


Consent

Health Care Consent Act, 1996.

Consent Forms.

Capacity
p y to Consent to Personal Care.

Prior Expressed Wishes.

Minors and Statutory Ages of Consent.


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Introduction

Need precision who is giving consent to whom for what?


Is the patient 14, 92, high, or mentally ill?
Is the professional a school counsellor or a psychiatrist?
Does the consent relate to treatment, personal assistance
services, admission to a long-term care home, or the
release of patient information?

The principles of consent and capacity focus on autonomy.

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Part 1: Common Law Principles of Consent


(a) General Principles
The patients consent is required before any treatment,
counselling
elli or caree is
i undertaken.
de t ke The consent
e t should
h ld cover
not only proposed treatment but all info about treatment.
Consent must relate to the specific treatment undertaken. At
common law, a practitioners mistaken belief in consent is no
defence.
If the patient is capable, his or her consent alone is
required and the consent of the patient
required,
patientss substitute decision
maker is irrelevant.
Consent must be given voluntarily, in the sense of being the
product of the patients conscious mind. A reluctant consent
is valid consent (e.g. parolee, probationers, etc.).
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Consent must be based on a full and frank disclosure of the


nature of the proposed treatment, and its risks, benefits and
alternatives. There is increasing emphasis on putting
proposed treatments in the context of the alternatives,
including doing nothing.

Unless a statute provides otherwise, consent may be given


explicitly (written or oral) or implicitly.

Patients may explicitly limit treatment.

Health practitioners can refuse to provide treatment if the


limits the patient imposes render that treatment futile or
dangerous.

Battrum v. British Columbia.


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(b) Exceptions to Common Law Principles of Consent

In an unforeseen medical emergency where it is impossible


to obtain consent or a refusal of consent, health practitioners
mayy intervene in an attempt
p to safe the life,, and ppreserve the
health of the individual.

Consent to surgery, an overall course of treatment or a


treatment plan provides consent to subordinate or technical
procedures that are an inherent part of the surgery, course of
treatment or treatment plan.

At one time,
ti
physicians
h i i
h d a therapeutic
had
th
ti privilege
i il
t
to
withhold information from patients if they believed that
disclosure would undermine the patients morale, such that
the patient would not have needed the essential treatment.
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Part 2: Health Care Consent Act, 1996 (HCCA)


(a) Introduction
(b) The Scope and Structure of the HCCA

Part II of the HCCA applies to treatment, which is broadly


defined, but subject to numerous exceptions (e.g. taking a
history, treatment that involves little or no risk, admission to a
treatment facility, and examinations to assess general
condition).

Part II applies to regulated


regulated health practitioners,
practitioners but not
social workers, youth workers, addiction counsellors, and
others.

Part II also governs substitute consent to general and


emergency admission to hospitals and psychiatric hospitals.
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Part III governs substitute consent to admission to a care


facility (i.e. a long-term care home).

Part IV governs substitute consent to personal assistance


services (i.e. activities of daily living washing, eating, etc.)

Part V governs the Consent and Capacity Board (CCB).

The HCCA does not apply to:


various orders of a medical officer of health relating to
communicable or virulent diseases;
regulations governing communicable diseases in the eyes of
newborns;
substitute consent to research, non-medical sterilizations, and
organ and tissue transplantation; and
the common law duty of caregivers to confine and restrain a
person to prevent serious bodily harm.
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(c) General Principles of Consent under the HCCA

Practitioner must be of the opinion that the patient was


capable and consented, or of the opinion that the patient was
incapable and his or her substitute decision maker consented.
El
Elements
off a valid
lid consent.
Consent must relate to proposed treatment.
Consent must be informed.
Questions must be answered honestly.
Affirmative obligation to provide information about the
nature, expected benefits, material risks and side effects of
the proposed treatment,
treatment and information about alternatives
and likely consequences of not having the treatment.
Consent must be given voluntarily.
Consent may be given expressly or implicitly.
Consent must not be obtained by misrepresentation or fraud.
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Consent to treatment includes variations and adjustments


that pose similar risks and benefits.

Consent to a treatment plan obtained by one practitioner


provides authority for other health professionals providing
services under the plan.

Capable patients can withdraw consent at any time.

Practitioners who provide treatment based on what they


reasonably and in good faith believe to be a valid consent
cannot be held liable under the Act. The same principle
applies to a reasonable and good faith reliance on a refusal
to consent.

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(d) Informed Consent: Battery or Negligence?

Failure to obtain a valid consent traditionally gave rise to a


battery claim.

However, the
H
h Supreme
S
C
Court
off Canada
C d limited
li i d battery
b
actions in 1980 to cases in which the patient:
did not consent at all;
the consent was exceeded; or
the consent was obtained fraudulently.

In all other cases, a plaintiff must bring a negligence claim


f failing
for
f ili to obtain
b i an informed
i f
d consent.

The Canadian courts have not provided a compelling


reason to adopt this pro-defendant approach.
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Part 3: Consent Forms


(a) Essential Elements of a Valid Consent Form

Unless a statute provides otherwise, a patient may consent


explicitly (orally or in writing),
writing) or implicitly.
implicitly

Prudent to get written consent in some cases (e.g.


significant risks, non-traditional therapy, legally, sexually,
or emotionally sensitive issues, and challenging patients).

A signed consent form is evidence of consent, not ironclad


proof of consent. A signed consent form is only as good as
the information it contains and the circumstances
circ mstances in which
hich
it is signed.

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Having a patients signature witnessed will rarely be of any


legal value. Nevertheless, a patients signature may have to
be witnessed if required by statute or management policy.

Ensure patient can read/understand English.

A practitioner may rely on a relative to translate, unless


there is some reason to believe that the information will not
be communicated accurately.

A signed consent form is only a means of documenting


patients consent, not a waiver of liability.

Issue for court is whether the patient consented to the


proposed treatment understanding the risks, benefits and
alternatives, and not whether her or she signed a piece of
paper.

Reid v. Maloney.
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Part 4: Capacity to Consent to Personal Care

As with consent, capacity issues must be framed precisely


who is capable of giving consent for what?

(a) Capacity to Consent under the HCCA


The HCCA principles of capacity are virtually identical to
the common law principles.
A patient is capable if he or she is able to understand the
information related to the specific decision and is able to
appreciate the reasonably foreseeable consequences of
consenting or refusing consent.
A patients
ti t capacity
it may change
h
over time.
ti
A patient may be capable of making some decisions, but
not others.
If a patient is capable, it is his or her decision that governs.
All individuals are presumed to be capable, unless there is
evidence to the contrary.
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These capacity principles apply whether the patient is an


adult, minor, developmentally disabled, intoxicated, high,
involuntarily detained in a mental hospital, vulnerable,
frail, rash, or immature.

The current test of capacity is set at a very low threshold.


The test does not relate to the patients ability to make a
reasoned, rational, wise, or prudent decision.

No concept of diminished capacity. The patient is either


capable or not.

R C.
Re
C (adult:
( d lt refusal
f l off medical
di l treatment).
t t
t)

Neto v. Klukach.

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(b) A Patients Rights under the HCCA on Being Found


Incapable

Patient must be informed of the consequences of being


found incapable.
p

In most circumstances, a patient may appeal a finding of


incapacity to the CCB, and during the appeal no treatment
can be provided except in an emergency.

A patient may request the CCB appoint a named person to


serve as his or her representative. A person may apply to
the
h CCB to be
b appointed
i d a patients
i representative.
i

CCB decisions may be challenged to the court, and until


the case is resolved no treatment can be provided, except in
an emergency.
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(c) Prior Expressed Wishes (Advance Directives/Living


Wills)

Capable individuals who are 16 or older may express wishes


regarding future treatment,
treatment personal assistance services or
admission to a facility. If the individual becomes incapable,
these wishes are binding on all subsequent SDMs.

Wishes may be communicated orally or in writing. No set


form of expression is required. This lack of safeguards on
prior expressed wishes is problematic.
R
Rash
h or imprudent
i
d t statements
t t
t that
th t an individual
i di id l makes
k while
hil
capable about accepting or rejecting treatment become
binding expressed wishes once he or she becomes incapable,
regardless of the adverse impact of that decision.
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Given the presumption of capacity, no evidence or proof is


required that the person was in fact capable when he or she
expressed the wish.
A SDMs unsubstantiated claim that the patient had
expressed a wish is sufficient.
sufficient There is no requirement for
any independent, third-party or documented proof.

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(d) Capacity to Manage Property Under the Substitute


Decisions Act, 1992

A patient is capable of making property decisions if he or


she is able to:
understand
d
d the
h information
i f
i related
l d to the
h specific
ifi financial
fi
i l
decision in issue; and
appreciate the reasonably foreseeable consequences of
making or refusing to make that decision.

The test of capacity focuses on the ability to understand


information and not the wisdom or prudence of the financial
d ii
decision.

Park v. Park.

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(e) Minors and Capacity

This is no set age of consent to treatment at common law or


under the HCCA. Rather, like other patients, minors are
presumed to be capable unless there is evidence to the
contrary.

The general test of capacity applies to minors and if they are


found to be capable it is their decision alone that governs.

Some courts have reframed the test of capacity for minors in


terms of whether the individual is a mature minor.

C. v. Wren.

Re Dueck.
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(f) Statutory Ages of Consent


There are relatively few statutory age of consent provisions.

The Child and Family Services Act (CFSA) has a three-tiered


age of consent.
Those 16 and older can consent to any services.
Those under 16 require parental consent to residential care
and the administration of psychotropic drugs.
Children 12 and older may consent to counselling without
parental consent, but if they are under 16, they must be
informed of the desirability of involving their parents.

The CFSA does not address whether a competent child under


12 can consent to counselling on his or her own behalf (i.e.
without parental consent).
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Education Act.
Parental consent in writing is required for IQ or
personality testing of a student who is under 18.
The Education Act does not p
prevent schools from
providing any other type of treatment, assessment,
referral, or counselling to competent students regardless
of age.
Both student and parent, if student is under 18, have a
statutory right to access the students Ontario Student
Record.

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Chapter II: Recap

Common law principles of consent and exceptions.

Health Care Consent Act, 1996.


Scope and structure.
structure
Principles of consent.
Informed consent: battery or negligence?

Consent forms.

Capacity to consent to personal care.


A patient
patientss rights on being found incapable.
incapable

Prior expressed wishes (advance directives/living wills).

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Capacity to manage property under Substitute Decisions Act,


1992.

Minors and capacity.


p y

Statutory ages of consent.

Child and Family Services Act.


Education Act.

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