Mental Health Awareness – Consent to Treatment

January 29, 2016 Lisa-Renee Capacity, Estate Planning, Health / Medical, Power of Attorney Tags: , , , , 0 Comments

Since Bell’s “Let’s Talk” Mental Health Awareness Day took place this past Wednesday, I thought today would be a good opportunity to blog about the topic of consenting to treatment.

The Centre for Addiction and Mental Health has reported that 1 in every 5 Canadians, during any particular year, will experience an issue with their mental health.  In light of this staggering statistic, it is possible that an individual may suffer from a mental illness that temporarily or permanently prevents him or her from consenting to treatment.

In Ontario, health practitioners are statutorily required pursuant to section 10 of the Health Care Consent Act (“HCCA”) to obtain consent before a proposed treatment can be administered.    Consent must be obtained from either a capable patient or a substitute decision maker for the incapable patient.  My colleague previously blogged about who qualifies as a substitute decision maker.  In accordance with the HCCA, a patient is capable of giving consent if he or she is able to understand the necessary information to make an informed decision about the treatment and the consequence of the decision or lack of decision.

Despite the requirement for consent set out in section 10, section 25(2) of the HCCA allows for the treatment of incapable persons in urgent circumstances, and specifically provides:

Despite section 10, a treatment may be administered without consent to a person who is incapable with respect to the treatment, if, in the opinion of the health practitioner proposing the treatment,

(a) there is an emergency; and

(b) the delay required to obtain a consent or refusal on the person’s behalf will prolong the suffering that the person is apparently experiencing or will put the person at risk of sustaining serious bodily harm.

Although there is some leeway for health practitioners to provide treatment to patients in urgent need of treatment without the consent of the patient or their substitute decision maker, it is nonetheless important to ensure that if you or someone you know suffers from a mental health issue that powers of attorney are in order to avoid delays when decisions need to be made about treatment.

Thanks for reading and have a good weekend!

Lisa Haseley

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