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Consent to Treatment

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Approved by Council: February 2001
To be Reviewed by: May 2020

Companion Resource: Advice to the Profession

Other Reference: Results from the most recent consultation

 

Policies of the College of Physicians and Surgeons of Ontario (the “College”) set out expectations for the professional conduct of physicians practising in Ontario. Together with the Practice Guide and relevant legislation and case law, they will be used by the College and its Committees when considering physician practice or conduct.

Within policies, the terms ‘must’ and ‘advised’ are used to articulate the College’s expectations. When ‘advised’ is used, it indicates that physicians can use reasonable discretion when applying this expectation to practice.

 

Definitions

Treatment: Anything that is done for a therapeutic, preventative, palliative, diagnostic, cosmetic, or other health-related purpose, and includes a course of treatment, plan of treatment, or community treatment plan.1

Capacity: A person is capable with respect to a treatment if they are able to understand the information that is relevant to making a decision and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. Capacity to consent to a treatment can change over time, and varies according to the individual patient and the complexity of the specific treatment decision.

Substitute decision-maker (SDM): A person who may give or refuse consent to a treatment on behalf of an incapable person.

Emergency: A situation where the patient is apparently experiencing severe suffering or is at risk, if the treatment is not administered promptly, of sustaining serious bodily harm.

 

Policy

General Expectations

  1. Physicians must be aware of, and comply with, all of the requirements in the Health Care Consent Act, 1996 (HCCA).2
  2. Physicians must obtain valid consent before a treatment is provided.
  3. Patients and substitute decision-makers (SDMs) have the legal right to refuse, withhold, or withdraw consent to a treatment, and physicians must respect this decision even if they do not agree with it.
  4. Physicians are advised to consider and address language and/or communication issues that may impede a patient’s ability to give valid consent.
    1. Physicians must use their professional judgment to determine whether it is appropriate to use family members as interpreters, and are advised to take the potential limitations of doing so into account in the specific circumstances (e.g., the family dynamics, the seriousness of the condition and/or treatment, etc.).
  5. Physicians are advised to obtain independent legal advice if they are unsure of their legal obligations in specific circumstances. The obligation to ensure that valid consent is obtained always rests with the physician proposing the treatment.

Obtaining Consent

  1. For consent to be valid, physicians must ensure that it:
    1. Is obtained from the patient, if they are capable with respect to treatment, or from the patient’s SDM, if the patient is incapable with respect to treatment.
    2. Relates to the specific treatment being proposed.3
    3. Is informed.
    4. Is given voluntarily and not under duress.
      1. If physicians believe that consent is not being freely given, they must ensure that there has been no coercion.
    5. Is not obtained through misrepresentation or fraud.
      1. Physicians must be frank and honest when interacting with patients, including when conveying information about the proposed treatment.
  2. To ensure that consent is informed, physicians must:
    1. 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 prior to obtaining consent, which includes:
      1. providing information that a reasonable person in the same circumstances would require in order to make a decision about the treatment;
      2. considering the specific circumstances of the patient, on a case-by-case basis, and using their clinical judgment in determining what information to provide; and
      3. providing information relating to material risks that are relevant for a broad range of patients and those that are particularly relevant for the specific patient;
    2. engage in a dialogue with the patient or the SDM (as the case may be) about the information specified in 7.a., regardless of whether physicians use supporting documents (such as consent forms, patient education materials or pamphlets) to facilitate the provision of this information;
    3. provide a response to requests for additional information about the treatment; and
    4. be satisfied that the information provided is understood and, as such, take reasonable steps to facilitate the comprehension of the information provided.
  1. While consent can be either express or implied, physicians are strongly advised to obtain express consent, particularly when the treatment is likely to be more than mildly painful, carries appreciable risk, will result in ablation of a bodily function, is a surgical procedure or an invasive investigative procedure, or will lead to significant changes in consciousness.
  2. While a physician proposing treatment may delegate the act of obtaining consent to another health-care provider, they must be assured that the health-care provider has the knowledge, skill, and judgment required to obtain consent.4
  3. If unsure about whether the consent obtained is valid, physicians must not provide the treatment until assured that valid consent has been obtained.

Capacity

  1. Physicians must ensure that the patient or SDM providing consent (as the case may be) is capable with respect to the treatment. In doing so, physicians are entitled to presume capacity unless there are reasonable grounds to believe otherwise (e.g., something in a patient’s history or behaviour raises questions about their capacity to consent to the treatment).
  2. Physicians must consider the patient’s capacity at various points in time and in relation to the specific treatment being proposed.

Incapable Patients and Substitute Decision-Making

The HCCA sets out a hierarchy of people who may give or refuse consent on behalf of an incapable person, as well as additional requirements that must be met in order for a person to be eligible to act as SDM.5

  1. Where a patient is incapable with respect to treatment, physicians must obtain consent from the highest ranking person in the hierarchy set out in the HCCA.
  2. If the highest-ranking person in the hierarchy does not satisfy all of the requirements for substitute decision-making under the HCCA, physicians must move to the next-highest person in the hierarchy who meets the requirements.
  3. In identifying an SDM, physicians must take reasonable steps to ensure that the individual is the highest-ranking person that satisfies the requirements of the HCCA. In doing so, physicians are entitled to rely on the representations made by an individual about their relationship to the patient, unless there is reason to believe the representations are false.
  4. Physicians must ensure that SDMs understand the requirements for giving or refusing consent to a treatment:
    1. The SDM must give or refuse consent in accordance with the most recent and known wish expressed by the patient, while capable and at least 16 years old.
    2. If no wish is known, or the wish is impossible to convey or inapplicable to the circumstances, the SDM must act in the patient’s best interests.
  1. Where a patient is incapable with respect to a treatment, physicians must, where possible, inform the incapable patient that an SDM will assist them in understanding the proposed treatment and will be responsible for the final decision.
    1. Where a patient disagrees with the finding of incapacity, physicians must advise them that they can apply to the Consent and Capacity Board (CCB) for a review of the finding.
    2. Where a patient disagrees with the involvement of the present SDM, physicians must advise them that they can apply to the CCB to appoint an SDM of their choice.6
    3. Physicians are advised to take reasonable steps to assist the patient if they express a desire to exercise either option in provision 17 a. or b. (e.g., by providing the contact information for the Law Society of Ontario’s Lawyer Referral Service).
    4. When appropriate, physicians must involve the incapable patient, to the extent possible, in discussions with the SDM.

Minors

  1. The test for capacity to consent to a treatment is not age-dependent and, as such, physicians must make a determination of capacity for a minor just as they would for an adult.
  2. If a minor is capable with respect to a treatment, the physician must obtain consent from the minor directly, even if the minor is accompanied by their parent or guardian.

Documenting Consent

  1. Physicians must document in the patient’s record information regarding consent to treatment where the treatment is likely to be more than mildly painful, carries appreciable risk, will result in ablation of a bodily function, is a surgical procedure or an invasive investigative procedure, or will lead to significant changes in consciousness.
  1. Physicians are advised to document consent in the patient’s record information in all other circumstances.
  2. Physicians must use their professional judgment to determine what information to document in the patient’s record, taking into consideration the specific circumstances of the case. Physicians are advised to record:
    1. the date of the dialogue(s) regarding consent;
    2. who was involved in the dialogue;
    3. the specific material risks that were communicated;
    4. any unique material risks related to the specific circumstances of the patient that were communicated;
    5. the risks of not treating the condition that were communicated;
    6. whether consent was given or refused and by whom;
    7. the date that consent was given or refused; and
    8. any findings of incapacity and the identity of the SDM, as necessary.

Emergency Treatment

  1. In emergencies, physicians must obtain consent from a patient who is apparently capable with respect to the treatment unless, in the opinion of the physician:
    1. the communication required in order for consent to be given or refused cannot take place because of a language barrier or because the patient has a disability that prevents the communication from taking place;
    2. steps that are reasonable in the circumstances have been taken to find a practical means of enabling the communication to take place, but no such means have been found;
    3. the delay required to find a practical means of enabling the communication to take place will prolong the suffering that the patient is apparently experiencing or will put the patient at risk of sustaining serious bodily harm; and
    4. there is no reason to believe that the patient does not want the treatment.
  1. Physicians must not provide treatment in emergencies if they have reasonable grounds to believe that the patient, while capable and at least 16 years of age, has expressed a wish applicable to the circumstances to refuse consent to the treatment.
  2. In emergencies, when a patient is incapable with respect to the treatment, physicians must obtain consent from the incapable patient’s SDM unless, in the opinion of the physician, the delay required to obtain consent or refusal on the patient’s behalf will prolong the suffering that the patient is apparently experiencing or will put the patient at risk of sustaining serious bodily harm.
    1. If during the course of treatment the patient becomes capable with respect to the treatment, the physician must seek the patient’s consent to the continuation of the treatment.
  3. Where an SDM refuses to consent to a treatment in an emergency, the physician must respect this decision unless, in the physician’s opinion, the SDM has not complied with the requirements for substitute decision-making outlined in the HCCA. In this case, the treatment may be administered despite the refusal.
  4. After administering treatment in an emergency without consent, the physician must promptly note in the patient’s record the opinions the physician held at the time and upon which they relied in administering the treatment in an emergency.
  5. Treatment in an emergency may continue only for as long as is reasonably necessary to find a practical means of enabling communication to take place or to find the incapable patient’s SDM, and physicians must ensure that reasonable efforts are made in this regard, as the case may be.
 

Endnotes

1. Under the HCCA, “treatment” does not include: a capacity assessment, health history-taking, assessment or examination of a patient to determine the general nature of his or her condition, communication of an assessment or diagnosis, admission to a hospital or other facility, personal assistance service, a treatment that in the circumstances poses little or no risk of harm to the person, or anything prescribed by the regulation as not constituting treatment. See section 2(1) of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A. and sections 1(1) and 33.7 of the Mental Health Act, R.S.O. 1990, c. M.7 for further information.

2. This policy sets the expectations for physicians regarding consent to treatment and, as such, incorporates key elements of this portion of the HCCA. The policy does not speak to other portions of the HCCA; the ability to make decisions about personal finances or personal health information; or consent to the collection, use, or disclosure of personal health information. In addition, the HCCA does not affect the common law duty of a caregiver to restrain or confine a person when immediate action is necessary to prevent serious bodily harm to that person or others, nor does it affect the law relating to consent on another person’s behalf with respect to procedures whose primary purpose is research, sterilization that is not medically necessary for the protection of the person’s health, and removal of tissue for transplantation.

3. Unless it is not reasonable to do so in the circumstances, physicians are entitled to presume that consent to treatment includes:

  • consent to variations or adjustments in the treatment, if the nature, expected benefits, material risks and material side effects of the changed treatment are not significantly different; and
  • consent to the continuation of the same treatment in a different setting, if there is no significant change in the expected benefits, material risks or material side effects of the treatment as a result of the change in the setting in which it is administered.

4. In this context, “delegation” is used in the colloquial sense; it does not refer to the delegation of controlled acts, as defined in the College’s Delegation of Controlled Acts policy.

5. See Advice to the Profession: Consent to Treatment [hyperlink] for further information from the HCCA about identifying an SDM.

6. If the patient intends to file, or has filed, an application to the CCB, you are required to ensure that treatment is not given:

  1. until 48 hours after the physician was first informed of the intent to apply to the CCB without an application being made,
  2. until the application to the CCB has been withdrawn,
  3. until the CCB makes its decision, if none of the parties informs the physician that they intend to appeal the CCB’s decision, or
  4. if a party to the application before the CCB informs the physician that he or she intends to appeal the CCB’s decision, until the period for commencing an appeal has elapsed with no appeal having been started, or until the appeal of the CCB’s decision has been resolved.