Chapter 4 Factors Negating Consent

imissyou419's version from 2017-10-21 01:21


Question Answer
If consent is negated, how is the situation treated?situation will be treated as if there was no consent at all
What are the 4 factors that will negate consent?mistake, fraud (deceit), duress (coercion or compulsion), and public policy.
Canada courts have defined these factors narrowly in tort actions
MistakeIf a patient consents to treatment based on a mistaken belief that a practitioner is responsible for creating, the consent will be negated
e.g. a patient consented to surgery b/c their surgeon overstated the benefits or understated the risks
Fraud (deceit)If a patient consents to treatment based on a fraudulent belief that a practitioner was RESPONSIBLE for creating, OR was aware of, the consent MAY be negated; consent will only be negated if the fraud went to the nature of the act, and not a collateral matter.
Similarly, until recently, fraud as to the harmful consequences of the act would not negate consent;
Fraud includes knowingly making a false statement, making a statement in total disregard as to its truth, or knowingly creating a misleading impression by omitting relevant information; e.g. ophthalmologist intentionally exaggerate the success rates of his laser treatment in order to encourage patients to have the procedure,
no clear boundary b/w very careless statements giving rise to mistake and statements made in total disregard to the truth giving rise to fraud
Duress (compulsion or coercion)Traditionally, duress has been defined narrowly in terms as a threat of immediate physical harm; the fact that a patient only reluctantly consents to treatment to avoid being fired, expelled from school or charged with breaching probation does not constitute duress
Public policyThe Canadian courts have recognized that consent may be negated if it would be "unfair" or unconscionable to allow the defendant to raise the defence, or if the consent was obtained by exploiting a relationship of trust
Can a competent individual be treated without their consent?No, competent individuals generally cannot be treated without their consent, whether they are young, elderly, mentally ill, a suspect, prisoner, parolee, or involuntarily detained psychiatric patient;
this principle applies regardless of the wisdom or consequences of the individual's decision
Statues authorizing detention vs. statues authorizing medical intervention or treatment without consentSeveral statutes authorize the detention of competent individuals without their consent, but few authorize medical intervention or treatment without consent
Federal Law - The Criminal Codepermits taking blood samples from unconscious impaired driving suspects in case involving death or bodily injury; and authorize judges to issue a warrant for taking blood, hair, or saliva samples for DNA testing from individuals who are reasonably believed to have committed a specified sexual or other designated offence
Federal Law - Quarantine Actmay require travellers to be detained, medically examined, and treated without consent in order to prevent the introduction or spread of a communicable disease; broad authority to search and examine any conveyance, thing or place other than a dwelling house without a warrant; and travellers are defined as people arriving in or departing from Canada (i.e. not people flying from Toronto to Vancouver)
Provincial Law - Health Protection and Promotion Act (HPPA)A MOH may order a person to submit to an examination and/or treatment for a communicable disease or order the person to refrain from specified conduct. If a person fails to comply, the MOH may apply for a court order in regard to a virulent disease. The court may order the person detained and treated in hospital without consent for up to 6 months.
Provincial Law - Immunization of School Pupils Act (ISPA)Does not provide for compulsory immunization. Rather, parents must immunize or seek an exemption on medical, religious, or conscientious grounds. Pending amendments to ISPA would require parents seeking an exemption on religious or conscientious grounds to complete an "immunization education session" with a MOH or his/her designate. Under ISPA, MOH may require school to: suspend a student who is not immunized or exempted; or exclude a student who has been exempted on religious or contentious grounds if an outbreak is reasonably believed to be imminent or to have occurred. As noted, MOH have even broader powers under HPPA to order individuals, including students: to undergo examination and/or treatments for any communicable disease; or to take/or refrain from taking any action
Provincial Law - Child and Family Services Act (CSFA)authorizes Children's Aid Societies to apprehend and detain children in need of protection in specified situations. Unlike in some other provinces, the Act does not grant Child's Aid Societies authority to consent or refuse consent to treatment on behalf of a capable child (it merely transfers whatever decision making authority the parents had to the Society)
Refusing/Withdrawing from, Life-Prolonging Treatmentcommon law right to refuse and withdraw from life-prolonging treatment, regardless of consequences
(not physician assisted suicide b/c not a treatment that kills them)
Demanding Others Withdraw Life-Prolonging Treatmentcommon law right to demand that another person withdraw life-prolonging treatment, regardless of consequences; However, s 14 of the Criminal Code provides that consent is not a defence to inflicting death upon another.
In Carter v Canada, the SCC struck down s 14 in regard to physician-assisted dying in cases of competent adults with grevious and irremediable medical condition that cause them enduring and intolerable suffering
Demanding that Life-Prolonging Treatment be Initiatedno common law right or statutory right to demand life prolonging treatment be initiated, regardless of the consequences; they are not required to provide futile treatment, treatment that they believe is contrary to the patient's best interests or treatment that is inconsistent with accepted medical practice
Demanding that Life-Prolonging Treatments be Continuedno common law right to demand life-prolonging treatment. However, SCC interpreted "treatment" in HCCA to include withdrawing life-prolonging treatment, and thus requiring consent;
following Cuthbertson, the college of physicians and surgeons of ontario stated that physicians require patient or SDM consent to withdraw life-prolonging treatment. If consent is refused, the physician must follow the college's conflict resolution process, which may include apply to the CCB
Do-Not-Resuscitate (DNR) Ordersphysicians may issue a DNR if resuscitation is medically inapproperiate but may need the consent of the patient, the patient's SDM, CCB, or a court
Section 241 of the Criminal Code: Counselling, aiding, and abetting suicidedistinguish withdrawal of life-prolonging treatment from assisted suicide (medical intervention keeping patient alive is removed vs. patient dies as result of intervention)
For Bill C-14 medical aid in dying, what must the patient be and do to be eligible?capable, at least 18, make a voluntary request not due to external pressure, provide an informed consent, and have a grievous and irremediable condition
Define grievous and irremediable medical conditionindividuals with a serious and incurable illness, disease, or disability causing enduring and intolerable physical or physiological suffering that cannot be relieved; in an advanced state of irreversible decline in capability; and whose natural death is reasonably forseeable
Are physicians and nurse practitioners required to participate in medical aid in dying?No, but only physicians and nurse practitioners are PERMITTED to participate in medical aid in dying
What must aiding suicide practitioners ensure ?all statutory criteria are met;
another "independent" medical or nurse practitioner has provided a written opinion that all criteria have been met;
the patient's request is made in writing, dated, signed in the presence of 2 "independent" capable adult witnesses;
at least 10 clear days have elapsed between the request and the provision of medical aid in dying;
exceptions can be made to the 2 preceding criteria if the patient is incapable of signing or is in intolerable pain;
and the patient is given the opportunity to withdraw consent immediately prior to the provision of medical aid in dying
Who can serve as an independent witness or an independent practitioner?strict limits b/c no beneficiaries; practitioners providing medical aid in dying cannot financially benefit directly or indirectly other than receiving their standard fees for their services
Euthanasiagentle, easy death;
voluntary and involuntary euthanasia will usually constitute first-degree murder (criminal code s 229 and s 231);
Given the enactment of Bill C14, physicians and nurse practitioners participating in euthanasia will have a defence to criminal liability, but only if they meet all the criteria in the new legislation
Quebec Bill 52unlike the federal legislation, this REQUIRES all institutions to provide end-of-life care, including continuous pallidative sedation and medical aid in dying
What happens if a physician is unwilling to provide care under Bill 52he/she must notify the institution's executive direction who must respond as soon as possible to the request for medical aid in dying
Who is eligible for Bill 5218 and capable; be at the end of life, having an incurable serious illness, and be in an advanced state of irreversible decline in capability; and experience constant and unbearable physical or physiological pain that cannot be relieved (grievous irremediable condition)
Checklist for Analyzing consent for treatmentis the patient capable of giving or refusing consent?
if capable, has the patient explicitly consented?
if the patient has not consented explicitly, has he consented implicitly, how was this evidenced?
did the patient consent voluntarily?
is the consent valid, in the sense that it is an informed consent?
is there adequate proof of consent? should written consent be obtained?
if the patient is incapable, is this an emergency situation in which practitioners are authorized to intervene without consent?
if this is not an emergency, has a valid substitue consent been given?
are there any factors that would invalidate the consent or substiute consent - mistakes, fraud, duress?
are there policy reasons for denying the defendant the right to raise the defence of consent - unfairness, unconscionability or exploitation of a relationship of trust?

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