Chapter 2 Consent and Capacity

imissyou419's version from 2017-10-19 00:20

Section 1

Question Answer
The principles of consent and capacity focuses on maximizing personal autonomy, thereby giving individuals authority to make both wise and imprudent health care decisions
How should the issue of consent be framed?WHO is giving consent to WHOM for WHAT?
Unless a statue provides otherwise, the relationship between health professionals and their patients is governed bycommon law principles of consent;
The patient's consent is needed for any treatment, counselling, or care
What should the the consent cover?both the proposed service and the flow of info about the treatment, counselling or care;
The consent must relate to the specific treatment or services undertaken.
At common law, a practitioner's mistaken belief that the patient consented provides no defense
If the patient is capable, do you need the consent of his or her substitute decision maker?No, his or her consent alone is needed; the consent of a power of attorney, parent, or other substitute decision maker is only relevant if the patient is incapable
Consent must be given voluntarily or involuntarily?voluntarily, in the sense of being the product of the patient's conscious mind.
A reluctant consent is a valid consent (e.g. parolee, probationers, etc);
A patient's motive for consenting does not affect the validity of the consent because the definition of volition establishes a low threshold test
Consent must be based on what kind of disclosure?full and frank disclosure of the nature of the proposed treatment, and its risks, benefits, and alternatives.
Increasing emphasis on putting proposed treatment in the context of its viable alternatives, incl. doing nothing
Unless a statute provides otherwise, how can consent be given?explicitly (written or oral) or implicitly
Can patients explicitly limit treatment?yes; health practitioners can refuse to provide treatment if the limits the patient imposes render that treatment futile or dangerous
What is the 3 exception to common law principle of consent?1. in an unforeseen medical emergency where it is impossible to obtain consent or obtain a refusal of consent, health practitioners and others may intervene in an attempt to save the life, and preserve the health of the individual.
2. 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
3. at one time, physicians had a therapeutic privilege to withhold information from a patient if they believed that disclosure would undermine the patient's morale, such that he or she would not have the needed or essential treatment. The courts have greatly narrowed the privilege in recent years.

Section 2

Question Answer
HCCAcontains detailed consent & capacity provisions governing ACCOUNTABILITY under the act. Thus practitioners may be subject to court orders forcing them to comply with the HCCA and prosecuted for provincial offences relating to specified provisions of the Act
What does the HCCA not displace?does not automatically displace the common law or Criminal Code principles.
For example, practioners violating the HCCA's consent principles may be acquitted of assault under the Criminal Code and absolved of civil liability in battery
What did HCCA really do?imposed an additional set of legal obligations on health care practitioners. It did not consolidate, rationalize, or streamline the various legal principles governing consent
Is HCCA comprehensive? KNOW THISNo, it only applies to specified treatment and services that are provided by certain categories of health professionals
Part II of HCCAapplies to "treatment", which is broadly defined as "anything that is done for a therapeutic, preventive, palliative, diagnostic, comestic, or other health-related purpose, and including a course of treatment or plan of treatment",
but subject to many exceptions (e.g. admission to a treatment facility, taking a history, treatment involving little or no risk, examinations to assess general condition, personal assistance services);
applies to "regulated health practitioners" (e.g. doctors, dentists, nurses, psychologists) but not social workers, addiction counsellors, employment assistance workers, and youth workers;
governs substitute consent to treatment, and general and emergency admission to hospitals and psychiatric hospitals
Part III of HCCAgoverns substitute consent to admission to a "care facility" (i.e. long term care home)
Part IV of HCCAgoverns substitute consent to "personal assistance services" (i.e. activities of daily living - washing, eating, etc)
Part V of HCCAgoverns the Consent and Capacity Board (CCB)
What does HCCA NOT apply to? KNOW THISvarious orders of a medical officer of health relating to communicable or virulent diseases;
regulations governing communicable diseases in the eyes of newborns;
constitute consent to research, non-medical sterilizations, and organ and tissue transplantation;
common law duty of caregivers to confine and restrain a person to prevent serious bodily harm
Under the HCCA, health practitioners cannot provide treatment unlessthey are of the OPINION that the patient was capable and consented, or of the OPINION that the patient was incapable and his/her substitute decision maker consented
What are the elements of a valid consent under HCCA?- consent must relate to the proposed treatment
- consent must be informed
- questions must be answered honestly, affirmative obligations to provide information about
1) the nature, expected benefits, material risks and side effects of the proposed treatment,
2) its alternatives, if any; and
3) the likely consequences of not having the treatment
- consent must be given voluntarily
- consent must not be obtained by misrepresentation or fraud
- consent must be given expressly or implicitly
Under the HCCA, consent to treatment includesvariations and adjustments that pose similar risks and benefits
Under the HCCA, does consent to a treatment plan obtained by 1 practitioner provide authority for other health professionals providing services under the plan?Yes
Under the HCCA, can capable patients withdraw consent at any time?Yes
Under the HCCA, can practitioners who provide treatment based on what they reasonably and in good faith believe to be a valid consent be held liable under the Act?No, the same principle applies to a reasonable and good faith reliance on a refusal to consent; These provisions do not automatically alter a practitioner's potential liability, if any, under the Criminal Code or pursuant to common law tort principles
How is the principles of consent under HCCA different than common law principles?1. HCCA states that health practitioners who reasonably and in good faith act on what they mistakenly believe to be a valid consent cannot be held liable.
2. The HCCA's emergency provisions in section 25 to 28 are far more complicated and restrictive than common law principles
The SCC limited battery actions to cases in which the patientdid not consent at all, the consent was exceeded, or the consent was obtained fraudulently
How did a health professional's failure to obtain a valid consent outcome change?traditionally gave rise to a battery claim, now with pro-defendant approach the plaintiff must bring a negligence claim for failing to obtain an informed consent if not battery

Section 3

Question Answer
Unless a statute provides otherwise, a patient may consentexplicitly (orally or in writing), or implicitly
When is it necessary to get written consent?services which involve significant risks, non-traditional therapy, legally, sexually, or emotionally sensitive issues, and challenging patients, ongoing treatment relationship, complex procedures
Does the patient's signature have to be witnessed?No, having a patient's signature witnessed will rarely be of any legal value. Nevertheless, a patient's signature may have to be witnessed if required by statute or management policy
Explain why a signed consent form is not definite proof of consent but rather some evidence of consent?a signed consent form is only as good as the information it contains, how understandable the content is, and the circumstances in which it is signed
T/F For consent forms, ensure patient can read/understand EnglishT, practitioner may rely on a relative to translate unless there is reason to believe the information will not be communicated accurately
Explain why a signed consent form is not a waiver of liability?it is a means of documenting patients' consent, not a waiver of liability.
Charting provides another means of documenting patient consent;
A signed consent to treatment is not a waiver of one's right to sue in negligence
What is the issue of the court?not whether the patient signed a piece of paper, but rather whether the patient consented to the treatment understanding the risks, benefits, and alternatives

Section 4

Question Answer
How is capacity issues framed?WHO is capable giving consent to WHOM for WHAT? framed same with consent
T/F The HCCA principles of capacity are virtually identical to common law principlesT
Principles of Capacity to consent under HCCA- 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 patient's capacity may change over time
- a patient may be capable of making some decisions, but not others
- if a patient is capable, it is his/her decision that governs
- all individuals are presumed to be capable, unless there is evidence to the contrary
- it is up to the person providing the service to determine if a patient is capable. Moreover, the clinician need only be of the opinion that the patient is capable; he or she is not required to be right
Principles of capacity apply whether a person isan adult, a minor, developmentally disabled, intoxicated, high, involuntarily detained in a mental hospital, vulnerable, frail, rash, or immature, physically disabled (since test for capacity is low threshold to maximize the autonomy of the individual - current test does NOT relate to the patient's ability to make a reasoned, rational, wise, or prudent decision)
Is there the concept of diminished capacity under HCCA?the patient is either capable or not
Does the HCCA permit a capable person's decision to be challenged because it is unwise or contrary to the patient's medical interests?No, the health professional may express their views and encourage him to rethink
What are the patient's rights under the HCCA on being found incapable?Consistent with the guidelines of their governing body, regulated health professionals must inform the patient of the consequences of being found incapable
In most circumstances, a patient may appeal a finding of incapability to the CCB and during the appeal no treatment can be provided except in an emergency
A patient, if 16 and older and incapable, may apply to the CCB to appoint a named person to serve as his/her representative. A person may apply to the CCB to be appointed a patient's representative.
CCB decisions may be challenged in court, and until the case is resolved no treatment can be provided, except in an emergency
A representative has to becapable, at least 16 years of age, and the appointment is in the incapable person's best interests
Prior Expressed WishesCapable individuals who are 16 or older and capable may express binding wishes regarding future treatment, personal assistance services or admission to a facility
If the individual becomes incapable, these wishes are binding on all subsequent SDMs regardless of the wisdom or consequences of those wishes
Wishes may be communicated orally or in writing. No set form of expression is required. This lack of safeguard on prior expressed wishes is problematic.
- rash or imprudent statements that an individual makes while capable about accepting or rejecting treatment becomes binding expressed wishes once he or she becomes incapable, regardless of the adverse impact of that decision
- given the presumption of capacity, no evidence or proof is required that the person was in fact capable when he/she expressed the wish
- a SDM's unsubstantiated claim that the patient had expressed a wish is sufficient. There is no requirement for any independent, third-party or document proof
- the current principles governing expressed wishes fail to protect naive and vulnerable patients, or protect patients from being exploited by manipulative family or SDMs
Capacity to Manage Property Under the Substitute Decision ActA patient is capable of making property decisions if he or she is able to:
- understand the information related to the specific financial decision in issue; and
- appreciate the reasonably forseeable consequences of making or refusing to make that decision

The test of capacity for making property decisions focuses on the ability to understand information, and not the wisdom of decisions
What is the set age of consent to treatment?No set age of consent to treatment at common law or under the HCCA
Minors are presumed to be capable unless there is evidence to the contrary
General test of capacity applies to minor and if they are found to be capable it is their decision alone that governs - understand the information relevant to making the decision and appreciate its reasonably foreseeable consequences
Substitute Decision Act contains a minimum age of _ for creating or serving as a POA for personal care, POA for property16, 18
HCCA contains minimum age of _ for consenting to treatment, personal assistance services or admission to a facility, it contains a minimum age of _ for creating binding prior expressed wishes regarding personal care0, 16
Child and Family Services Act (CSFA)'s 3 tiered age of consentA competent person who is 16 year or older can consent to any services w/o parental
Those under 16 require parental consent to residential care + administration of psychotropic drug
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

does not address whether a competent child under 12 can consent to counselling w/o parental
Education ActParental consent in writing is required for IQ or personality testing of a student who is under 18
The Education Act does not prevent schools from providing any other type of treatment, assessment, referral, or counselling to competent students regardless of age
Both student and parents, if under 18, have a right to access the student's Ontario Student Record

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