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Toronto Notes 2019 Ethical and Legal Issues in Canadian Medicine Ethical, Legal, and Organizational Medicine ELOM9
Obtaining Legal Consent
• consentofthepatientmustbeobtainedbeforeanymedicalinterventionisprovided;consentcanbe verbal or written, although written is usually preferred
■ a signed consent form is only evidence of consent – it does not replace the process for obtaining valid consent
■ most important component is what the patient understands and appreciates, not what the signed consent form states
■ implied (e.g. a patient holding out their arm for an immunization) or expressed
• consentisanongoingprocessandcanbewithdrawnorchangedafteritisgiven,unlessstoppinga
procedure would put the patient at risk of serious harm
■ if consent has been withdrawn during a procedure, the MD must stop treatment unless stopping the
procedure would threaten the patient’s life
■ in obtaining consent to continue the procedure, the physician need only re-explain the procedure
and risks if there has been a material change in circumstances since obtaining consent originally. If there has been no material change in circumstances, simple assent to continue is sufficient (Ciarlariello v. Schachter)
• HCCAofOntario(1996)coversconsenttotreatment,admissiontoafacility,andpersonalassistance services (e.g. home care)
Exceptions to Consent
1. Emergencies
■ treatment can be provided without consent where a patient is experiencing severe suffering, or where a delay in treatment would lead to serious harm or death and consent cannot be obtained from the patient or their SDM
■ emergency treatment should not violate a prior expressed wish of the patient (e.g. a signed Jehovah’s Witness card)
■ if patient is incapable, MD must document reasons for incapacity and why situation is emergent
■ patients have a right to challenge a finding of incapacity as it removes their decision-making ability
■ if a SDM is not available, MD can treat without consent until the SDM is available or the situation is
no longer emergent
2. Legislation
■ mental health legislation allows for:
◆ the detention of patients without their consent
◆ psychiatric outpatients may be required to adhere to a care plan in accordance with Community
Treatment Orders
◆ Public Health legislation allows medical officers of health to detain, examine, and treat
patients without their consent (e.g. a patient with TB refusing to take medication) to prevent
transmission of communicable diseases
3. Special Situations
■ public health emergencies (e.g. an epidemic or communicable disease treatment) ■ warrant for information by police
Consequences of Failure to Obtain Valid Consent
• treatmentwithoutconsentisbattery(anoffenseintort),evenifthetreatmentislife-saving(excluding situations outlined in exceptions section above)
• treatment of a patient on the basis of poorly informed consent may constitute negligence, also an offense in tort
• theonusofproofthatvalidconsentwasnotobtainedrestswiththeplaintiff(usuallythepatient)
Overview of Capacity
• capacityistheabilityto:
■ understand information relevant to a treatment decision
■ appreciate the reasonably foreseeable consequences of a decision or lack of a decision
• capacityisspecificforeachdecision(e.g.apersonmaybecapabletoconsenttohavingachestx-ray,but not for a bronchoscopy)
• capacitycanchangeovertime(e.g.temporaryincapacitysecondarytodelirium)
• mostCanadianjurisdictionsdistinguishcapacitytomakehealthcaredecisionsfromcapacitytomake
financial decisions; a patient may be deemed capable of one, but not the other
• apersonispresumedcapableunlessthereisgoodevidencetothecontrary
• capablepatientsareentitledtomaketheirowndecisions
• capablepatientscanrefusetreatmentevenifitleadstoseriousharmordeath;however,decisionsthat
put patients at risk of serious harm or death require careful scrutiny
Assessment of Capacity
• capacityassessmentsmustbeconductedbytheclinicianprovidingtreatmentand,ifappropriate,in consultation with other healthcare professionals (e.g. another physician, a mental health nurse)
• clinicalcapacityassessmentmayinclude:
■ specific capacity assessment (i.e. capacity specific to the decision at hand):
1. effective disclosure of information and evaluation of patient’s reason for decision 2. understanding of:
– their condition
– the nature of the proposed treatment
The Supreme Court of Canada expects physicians to disclose the risks that a “reasonable” person would want to know. In practice, this means disclosing minor risks that are common as well as serious risks that happen infrequently, especially those risks that are particularly relevant to a particular patient (e.g. hearing loss for a musician)
Major Exceptions to Consent
• Emergencies
• Public and Mental Health Legislation • Communicable diseases
Consent
• Treatment without consent = battery, including if NO consent or if WRONG procedure
• Treatment with poor or invalid consent = negligence
CPSO Policy on Capacity
Capacity is an essential component of valid consent, and obtaining valid consent is a policy of the CMA and other professional bodies
Capacity Assessment
Test for understanding: can the patient recite what you have disclosed?
Test for appreciation: are his/her beliefs responsive to evidence?
Refer to: JAMA The Rational Clinical Examination “Does This Patient Have Medical Decision-Making Capacity?”