Patient autonomy and respect for personal dignity are central to the provision of ethically sound care. In order to exercise their autonomy, patients have the moral and legal right to make decisions regarding their treatment when they are capable of doing so or having a substitute decision-maker make these decisions on their behalf, when they are not capable to do so. In support of these rights, physicians have a legal and professional obligation to obtain consent prior to providing treatment.

The College’s Consent to Treatment policy sets out physicians’ professional and legal obligations with respect to obtaining consent to treatment. This advice document is intended to help physicians interpret their obligations as set out in the Consent to Treatment policy and provide guidance around how these obligations may be effectively discharged.

Source of Obligations

What is the source of my consent obligations?

Physicians have both legal and professional obligations to obtain consent prior to providing treatment. Although the policy does not contain an exhaustive catalogue, it does highlight many of the legal obligations set out in the Health Care Consent Act, 1996 (HCCA). It also sets out certain obligations that are not codified in the HCCA, but are professional expectations of physicians set by the College.

Obtaining Consent

I am required to consider and address language and communication barriers when obtaining consent. Why is this necessary, and what resources or techniques can I use to help overcome these issues?

A range of language or communication issues may impede a patient’s ability to give valid consent, including situations where the physician and patient do not speak a common language, the patient is deaf or has difficulty speaking/communicating, or the patient has a cognitive impairment.

To help overcome language and/or communication issues, you may want to consider using family members or third party interpreters, speech language pathologists, occupational therapists, and communication techniques such as writing, typing, and non-verbal communication (e.g., hand squeezing, blinking, etc.).

What should I consider when using my professional judgment to determine whether it is appropriate to use family members to facilitate communication with the patient?

Depending on the specific circumstances of each case, there are potential limitations of using family members instead of third-party interpreters, such as language limitations, difficulty understanding medical terms, conflicts within families, and important information being deliberately or accidentally omitted.

Remember that you must also have consent to share the patient’s personal health information with any interpreter, regardless of whether the interpreter is a family member or a third party. For more information see the College’s Confidentiality of Personal Health Information policy.

I am required to take reasonable steps to facilitate the comprehension of the information provided. What steps can I take to meet this requirement?

You may want to be mindful of the factors that can limit patient comprehension, as well as the tools that can help support comprehension. Some of these include:

• Considering patients’ level of numerical literacy (e.g. ability to understand probabilities) and medical literacy (e.g. ability to understand medical terms), and using plain language to help them understand probability data and other concepts.
• Discussing with the patient how they prefer to receive information (e.g., format, level of detail, etc.) and accommodating preferences for different learning modalities (e.g. visual, auditory, etc.).
• Considering the presence of pain, mood disorders, and biases (e.g., heightened emotion, focusing on short-term concerns, being influenced by unrelated past events, etc.) when communicating information.

Other tools can be found in the CMPA document, “Helping patients make informed decisions.”

Remember that the information you provide to patients or substitute decision-makers (SDMs) with will only facilitate decision-making if it is provided, reviewed, and understood prior to giving or refusing consent to a treatment.

How can I encourage patients and SDMs to ask questions?

You can create a positive environment for patients and SDMs by scheduling enough time for the appointment to allow for questions and inviting questions throughout the dialogue, using open ended language such as, “What questions do you have for me?” It may also be helpful to arrange a time to answer any questions that arise after the appointment.

What is the difference between express and implied consent?

Express consent is direct, explicit, and unequivocal, and can be given orally or in writing.

Implied consent is inferred from the words or behaviour of the patient, or the surrounding circumstances, such that a reasonable person would believe that consent has been given, although no direct, explicit, and unequivocal words of agreement have been given.

What do I do if a patient or SDM wants to waive their right to be informed and provide consent without hearing about the risks?

Patients or SDMs may feel anxious about the proposed treatment and may not want to hear about the risks. However, it is a key legal requirement that consent must be informed in order to be valid, which means that you are required to provide information about the nature of the treatment, its expected benefits, its material risks and material side effects, alternative courses of action, and the likely consequences of not having the treatment. If a patient or SDM refuses to hear this information, their decision will not be informed and their consent will not be valid.

You may want to sensitively explain this requirement to the patient or SDM, and emphasize the importance of understanding the risks. You may also want to give patients or SDMs time to process the information, and try to arrange for an opportunity to continue the dialogue at a later date. If the patient or SDM continues to refuse to hear about the risks, you may want to seek legal advice regarding how to proceed.

In order to obtain informed consent, I need to provide certain information, including the “material risks” associated with the treatment. What are “material” risks and which risks do I have to disclose?

Courts have defined a “material” risk as a risk about which a reasonable person in the same circumstances as the patient would want to know in order to make a decision about the treatment. This will include, but is not limited to, risks that the physician believes may lead the patient to refuse or withhold consent to treatment.

The material risks that must be disclosed are risks that are common and significant, even though not necessarily grave, and those that are rare, but particularly significant. Generally speaking, the more frequent the risk, the greater the obligation to inform the patient about it. In addition, risks of great potential seriousness, such as paralysis or death, must likely be disclosed even if uncommon.

The particular circumstances of the patient are also crucial to determining whether a risk is material to a reasonable person in the position of that patient. Therefore, the risks that must be discussed with each patient may well vary and must be determined on a case-by-case basis. Patient-specific considerations could include, but are not limited to, the patient’s values, lifestyle, profession, and hobbies.

Why does the College require that I document information about the material risks associated with the treatment?

You must use your professional judgment to determine what information to document in the patient’s record, taking into consideration the specific circumstances of the case. However, the College recommends noting the specific material risks that were communicated and any unique material risks related to the specific circumstances of the patient that were communicated. This may include, but is not limited to, documenting the risks that may lead the patient to refuse or withhold consent to the treatment.

Remember that a legible, understandable and contemporaneous note in the patient’s record regarding consent to treatment is the best evidence a physician has to demonstrate that the requirements of the HCCA have been satisfied.

Determining Capacity

Can I assume that, once considered capable with respect to a treatment, a patient will always be capable regarding that treatment or that they will be capable for all other treatment decisions?

No. Capacity is fluid: it can change over time and depends on the nature and complexity of the specific treatment decision. In addition, a patient may be incapable with respect to a treatment at one time and capable at another, and be incapable with respect to some treatments and capable with respect to others.

For this reason, you should keep in mind that consent may need to be revisited after it has been obtained if there are any significant changes in the patient (e.g., their health status, health-care needs, specific circumstances, capacity, etc.) or treatment (e.g., the nature, expected benefits, material risks and material side effects, etc.). The passage of time may also increase the risk that these changes will arise and that consent may need to be obtained again.

My patient is refusing to consent to a treatment that I think they should have. Does this mean they are incapable?

Not necessarily. Patients and SDMs have the legal right to refuse or withhold consent. Consent can also be withdrawn at any time, by the patient if they are capable with respect to the treatment at the time of the withdrawal, or by the patient’s SDM if the patient is incapable.

Patients or SDMs may sometimes make decisions that are contrary to the physician’s treatment advice. You cannot automatically assume that because the patient is making a decision you do not agree with, that they are incapable of making that decision.

It is possible, however, that a patient’s decision may cause you to question whether the patient has the capacity to make the decision (e.g., that the patient may not truly understand the consequences of not proceeding with the treatment). Where this is the case, you may want to consider doing a more thorough investigation of the patient’s capacity to ensure the patient’s decision is informed and valid.

It is important to remember that it is inappropriate for a physician to end the physician-patient relationship in situations where the patient chooses not to follow the physician’s treatment advice (for more information, see the College’s Ending the Physician-Patient Relationship policy).

Incapable Patients and Substitute Decision-Makers

How do I identify the SDM?

In identifying the SDM, you should consult the following hierarchy of individuals/agencies set out in the HCCA who may give or refuse consent on behalf of an incapable patient:

1. guardian, if authorized to give or refuse consent to the treatment;
2. attorney for personal care, if authorized by a written power of attorney document to make decisions about personal care on behalf of the patient, in the event that the patient is incapable;
3. representative appointed by the Consent and Capacity Board (CCB), if authorized; 
4. spouse or partner, as defined by sections 20(7) to (9) of the HCCA;
5. child or parent or individual/agency entitled to give or refuse consent instead of a parent (this does not include a parent who has only a right of access); 
6. parent with right of access only; 
7. brother or sister; 
8. any other relative (related by blood, marriage or adoption); 

9. Public Guardian and Trustee.

The SDM is the highest-ranking person set out in the above list who is also:

• capable with respect to the treatment (the test for capacity applies equally to both patients and SDMs);
• at least 16 years old, unless they are the incapable person’s parent;
• not prohibited by court order or separation agreement from having access to the incapable patient or giving or refusing consent on their behalf;
• available (that is, it is possible within a time that is reasonable in the circumstances to communicate with the person and obtain a consent or refusal); and
• willing to assume the responsibility of giving or refusing consent.

Can only one person act as the SDM?

No, the SDM may be more than one person within the same rank, provided that they meet the above requirements.

If two or more SDMs within the same rank disagree about whether to give or refuse consent, and they are higher on the hierarchy than all others and satisfy all the requirements for SDMs, the Public Guardian and Trustee will make the decision.

The SDM is required to give or refuse consent in accordance with the wishes of the patient, provided the patient was, at the time the wishes were expressed, capable and 16 years or older. How can a patient communicate their wishes to the SDM?

Wishes can be expressed in writing, orally, or in any other manner. Written wishes may involve advance care planning documents, what is commonly known as an ‘advance directive’ in a power of attorney, or some other form. For more information about advance care planning, see the College’s Planning for and Providing Quality End-of-Life Care policy.

Later wishes expressed while capable, whether written, oral, or in any other manner, prevail over earlier wishes.

Where the patient’s wishes are unknown, do not apply, or cannot be complied with, the SDM is required to act in the patient’s “best interests”. What does this mean?

To determine the incapable patient’s best interests, the SDM must consider:

• any values and beliefs the incapable patient held while capable;
• any wishes the incapable patient expressed that are not required to be followed (i.e., the patient was not capable or under the age of 16 when the wishes were expressed);
• the impact of providing and not providing the treatment on the patient’s condition or well-being;
• whether the expected benefit of the treatment outweighs the risk of harm; and
• whether a less restrictive or less intrusive treatment would be as beneficial.

The impact of providing or not providing the treatment on the patient’s condition or well-being will include assessing whether:

• the treatment is likely to improve the incapable patient’s condition or well-being, prevent their condition or well-being from deteriorating, or reduce the extent to which (or rate at which) their condition or well-being is likely to deteriorate; and
• their condition or well-being is likely to improve, remain the same, or deteriorate without the treatment.

I have a legal obligation to ensure that SDMs understand the requirements for giving or refusing consent as set out in the HCCA. What steps can I take to fulfill this obligation?

You will first need to determine how familiar the SDM is with the HCCA requirements. Some SDMs may not know what the HCCA requirements are, so you may need to tell them. You may want to consider referring SDMs to existing substitute decision-making resources that outline the requirements, such as the Hamilton Health Sciences’ Making Decisions for Others: Your Role as a Substitute Decision Maker education document.

Other SDMs may be very familiar with the requirements, as they may have had to give or refuse consent on behalf of an incapable patient before. In these circumstances, you may not need to tell SDMs what the requirements are. Instead, you must be satisfied that the SDM understands what the HCCA requirements are when you are obtaining consent to a treatment from an SDM.

What if I am concerned that the SDM is not acting in accordance with the patient’s wishes or best interests?

If you are of the view that the SDM is not acting in accordance with the HCCA, you can apply to the Consent and Capacity Board for determination as to how to proceed. For more information visit: http://www.ccboard.on.ca/scripts/english/index.asp

Further Resources

Are there resources to help me navigate consent and capacity issues?

Physicians may wish to refer to the HCCA directly. Additionally, physicians may find the Ontario Hospital Associations’ Decision Tree for Obtaining Consent Under the Health Care Consent Act¹ to be a helpful resource for navigating the consent process.

Endnotes

^1. See Appendix A of the Ontario Hospital Associations’ A Practical Guide to Mental Health and the Law in Ontario.