Tag: Health Care Consent Act
The COVID-19 pandemic has thrown much of what we take for granted on its head. If recent reports are accurate we can potentially add to that list an individual’s right to control their own medical treatment as codified in the Health Care Consent Act (the “HCCA”).
There have been reports in the news recently about advanced planning currently underway about what would happen to the provision of health care if the worst case scenario for COVID-19 should occur and the hospitals are overwhelmed. Included amongst these reports are discussions that certain provisions of the HCCA may temporarily be suspended as part of a new triage system which would allow medical professionals to prioritize who received treatment.
Section 10 of the HCCA codifies that a health care practitioner shall not carry out any “treatment” for a patient unless the patient, or someone authorized on behalf of the patient, has consented to the treatment. The Supreme Court of Canada in Cuthbertson v. Rasouli, 2013 SCC 53, confirmed that “treatment” included the right not to be removed from life support without the patient’s consent even if health practitioners believed that keeping the patient on life support was not in the patient’s best interest. In coming to such a decision the Supreme Court of Canada notes:
“The patient’s autonomy interest — the right to decide what happens to one’s body and one’s life — has historically been viewed as trumping all other interests, including what physicians may think is in the patient’s best interests.”
The proposed changes to the HCCA would appear to be in direct contradiction to the spirit of this statement, allowing health care practitioners to potentially determine treatment without a patient’s consent based off of the triage criteria that may be developed. This “treatment” could potentially include whether to keep a patient on a lifesaving ventilator.
Hopefully the recent downward trend for COVID-19 cases holds and the discussion about any changes to the HCCA remains purely academic. If not however, and changes are made to the HCCA which could remove the requirement to obtain a patient’s consent before implementing “treatment”, you can be certain that litigation would follow. If this should occur it will be interesting to see how the court reconciles any changes to the HCCA with the historic jurisprudence, for as Rasouli notes beginning at paragraph 18 many of the rights that were codified in the HCCA previously existed under the common law, such that any changes to the HCCA alone may not necessarily take these rights away for a patient.
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The highly anticipated COVID-19 vaccine is being rolled out in Ontario, with some of the first shots having already been administered yesterday. The University Health Network in Toronto and The Ottawa Hospital will be the first to administer the vaccine. Frontline healthcare workers in hospitals, long-term care homes, and other high-risk settings will be given priority. Vaccinations are expected to expand to residents in long-term care homes, home care patients with chronic conditions, and First Nation communities and urban Indigenous populations later in the winter of 2021. The province has not said when vaccines will become available for every Ontarian who wishes to be immunized. However, once available, the province confirms that vaccines will not be mandated but strongly encouraged.
The mass administration of the COVID-19 vaccine could be a real game changer in the battle against coronavirus. However, a recent public opinion poll conducted by Maru Blue shows that only one-third of Canadians would take the vaccine immediately, about half of Canadians would bide their time to assess its safety or use, and the rest have no intention of getting the shot at all. So it appears that Canadians are somewhat divided on the question of whether and when to get vaccinated.
Given the difference of opinion regarding this new vaccine, it is not inconceivable that multiple substitute-decision makers (SDMs) could disagree on whether to give or refuse consent to the shot on behalf of an incapable person. How would such a disagreement be resolved?
First, it is important to note that Ontario’s capacity legislation sets out a hierarchy of SDMs. Pursuant to section 20 of the Health Care Consent Act (HCCA), the guardian of the person is at the top of this hierarchy, followed by an attorney for personal care, representative appointed by the Consent and Capacity Board (CCB), spouse or partner, parent or children, siblings, any other relatives, and lastly the Public Guardian and Trustee (PGT). The decision of the highest ranking SDM will prevail over dissenting opinions from those who are lower on the hierarchy.
If there are multiple equally ranked SDMs acting with respect to a particular decision, they all have to be in agreement – the majority does not rule. If the SDMs fail to reach a consensus, any of the SDMs could apply to the CCB to try and be appointed the sole representative to make the decision. However, this option is not available where the incapable person already has a guardian of person or attorney for personal care. Another option is for the SDMs to attend mediation to try to come to an agreement. If mediation is not successful, the health practitioner must turn to the PGT for a decision. Section 20(6) of the HCCA states that the PGT is required to act and cannot decline to act in this situation.
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In uncertain times, it can be helpful to remember what we can do to plan for our own health, security, and well-being. In the past, we have blogged about “longevity planning” (i.e. advice for longer life expectancy) and the resemblances it has to executing powers of attorney for personal care (“POA PC”).
In Ontario, powers of attorney for personal care are generally governed by the Substitute Decisions Act, 1992 (the “SDA”). The Health Care Consent Act, 1996 also applies to certain decisions made by attorneys for personal care.
Personal care decisions are about health care, medical treatment, diet, housing, hygiene, and safety. An attorney for personal care will be able to make almost any decision of this nature that the grantor would normally make for him/herself when they were capable.
According to the SDA, an attorney for personal care must follow the known wishes of the grantor or make decisions in the best interest of that person. In doing so, the attorney must choose the least restrictive and intrusive course of action that is available and is appropriate in the circumstances.
If you are appointed as an attorney for personal care, below is a non-exhaustive list of steps you should take or obligations you may have:
- Obtain a copy of the POA PC and determine whether it is in effect. The POA PC only comes into effect once the grantor is incapable of making his or her personal care decisions.
- Determine whether there are any specific instructions/restrictions in the POA PC.
- Encourage the grantor’s participation in decision-making and try to foster the grantor’s independence as much as possible.
- Encourage and facilitate communication between the grantor and his/her family and friends.
- Consider developing a guardianship plan. While this is not mandatory for an attorney whose powers stem from a POA PC, it may help provide a roadmap for future decisions.
The above checklist is non-exhaustive list of some of the obligations an attorney for personal care have. Section 66(4) of the SDA also sets out a number of factors to consider when determining what personal care decisions are in the incapable person’s best interest. Most importantly, an attorney for personal care must not lose sight of the fact that he/she is a fiduciary and held to a higher standard.
Making decisions as an attorney can be difficult, particularly in uncertain circumstances. It is important to be prepared. The Ministry of the Attorney General also provides some useful information about an attorney’s obligations here. A lawyer should be consulted so the attorney understands their duties.
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Last week, the Law Commission of Ontario (LCO) released its Final Report on Legal Capacity, Decision-making and Guardianship. The Final Report is the result of work conducted by a LCO Advisory Group since early 2013.
In the Final Report, the LCO outlines the strengths and attributes of Ontario’s capacity and guardianship regime, as well as areas of concern. Some key areas of concern the LCO identifies include:
- The system is confusing and lacks coordination;
- There is a lack of clarity and consistency in the law for capacity assessments;
- Legal tools are not responsive enough for the range of needs of those directly affected;
- Individuals, families, and service providers are not receiving enough support;
- The current oversight and monitoring mechanisms for substitute decision makers are insufficient;
- The dispute resolution mechanisms under the Substitute Decisions Act, 1992 (SDA) are inaccessible to many.
The Final Report includes recommendations for reforms to law, policy and practice. These recommendations relate to (1) improving access to the law, (2) promoting understanding of the law by those directly affected, (3) strengthening protection of rights under the Health Care Consent Act, (4) reducing inappropriate intervention, (5) increasing accountability and transparency, and (6) enabling greater choice of substitute decision makers.
The Final Report makes 58 recommendations on the statutory regime for legal capacity, decision-making, and guardianship, including proposed reforms to the SDA, the Health Care Consent Act, 1996, and the Mental Health Act. Some of the Final Report’s key recommendations on the law of substitute decision-making include:
- Improved access to capacity assessments under the SDA;
- A standard-form “Statement of Commitment” required to be signed by persons accepting an appointment as an attorney;
- The delivery of “Notices of Attorney Acting” at the first time the attorney acts, delivered to the grantor, the spouse, any previous attorney and any monitor appointed, as well as for any other persons identified in the Power of Attorney;
- The option to name a “monitor”, who would have statutory powers to visit and communicate with the grantor and powers to review accounts and records kept by the attorney;
- Development of time-limited or reviewable guardianship orders;
- Development of limited property guardianships, in parallel with existing limited personal care guardianships;
- Further research and consultation be conducted towards establishing a dedicated licensing and regulatory system for professional substitute decision-makers;
- Further research and consultation be conducted towards allowing community agencies to provide substitute decision-making for day-to-day decisions;
- Clarification of the duty of health practitioners to provide information to substitute decision-makers upon a finding of incapacity; and
- Empowering adjudicators under the SDA to order substitute decision-makers to obtain education on specific aspects of his or her duties.
The Final Report suggests short, medium, and long-term plans for implementing the LCO’s recommendations. You can find a copy of the full report at the LCO website.
Thank you for reading.
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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!
Section 10 of Ontario’s Health Care Consent Act 1996 (“the Act”) states that a health practitioner shall not administer a treatment for a person unless the person has given consent (if capable with respect to the treatment) or if the person’s substitute decision maker has given consent on the person’s behalf (if incapable with respect to the treatment). Simple concept at first blush, but a closer examination reveals some complexities, a handful of which we’ll explore below.
What constitutes informed consent?
One of the defining elements of consent to treatment, is that such consent must be “informed”. By framing consent in this way, the Act promotes communication between health practitioners and their patients or clients and encourages patients to exercise their autonomy. According to the Act, a consent to treatment is informed if, before giving it,
a) The person received the information about the treatment that a reasonable person in the same circumstances would require to make a decision and
b) The person received responses to his/her requests for additional information about the treatment.
Information provided by the health practitioner must include the nature of the treatment (diagnosis and recommended treatment), expected benefits, its material risks and side effects, alternative courses of action (if any) and the likely consequences of not having the treatment. If the patient is deemed to be incapable, then the practitioner must identify the substitute decision-maker (s. 20 (1) of the Act sets out a specific hierarchy of individuals/agencies who may give or refuse consent) and go through the same process to obtain consent.
In a tragic case decided in 2009 (upheld on appeal earlier this year) involving catastrophic injury to an infant sustained at birth as a result of an unsuccessful attempt at a forceps-assisted delivery, the trial judge found that the doctor in question failed to obtain informed consent to that procedure. Risks and benefits of the assisted delivery had not been explained to the mother, nor had the option of continuing to push been presented to her for consideration.
What constitutes informed refusal?
Election to forgo the treatment recommended by the practitioner after the disclosure of the relevant information constitutes “informed refusal”. A competent patient may refuse a treatment, even if it is in their best interests to have the treatment administered. The CMA Code of Ethics (2004) states that the practitioner has a responsibility to respect the right of a patient to reject any medical care recommended.
The Act considers refusal of consent to include withdrawal of consent.
When may the requirement for consent to treatment be waived?
Consent from a capable patient may be waived if the situation is deemed by the health practitioner to be an emergency (i.e. the person is experiencing severe suffering or is at risk of sustaining serious bodily harm if the treatment is not administered promptly). Similarly, a treatment may be given without consent to an incapable person if there is an emergency and the delay required to obtain consent/refusal on the person’s behalf will prolong the person’s suffering or will put the person at risk of sustaining serious bodily harm. Interestingly, in an emergency situation, in the event that a substitute decision-maker is present and refuses to consent to treatment and is not acting in accordance with prior known wishes or is not acting in the patient’s best interests, then s. 27 of the Act gives the practitioner the power to administer treatment despite the refusal.
What is the age of consent in Ontario?
Contrary to widespread belief, there is no age of consent in Ontario. Instead, the principles of capacity (to consent to treatment) are applied, as per s. 4 (1) of the Act, i.e. does the person understand the information that is salient to the decision, and do they appreciate the reasonably foreseeable consequences of a decision or a lack of decision. In short, the concept of maturity is used as the yardstick, rather than chronological age. The issue of age of consent has come under the spotlight in recent years as a result of Ontario’s school-based HPV (Human Papillomavirus) immunization program for Grade 8 girls. All of Ontario’s Public Health Units request parental consent before HPV immunization at school-based clinics. That being said, a student who is deemed to be capable with regards to consenting to or refusing the immunization has the right to do so, irrespective of whether their parent signed or did not sign the consent form on their behalf.
In their Consent to Treatment Policy (#4-05), the College of Physicians and Surgeons of Ontario supports this framework by stating that "the capacity to exercise independent judgment for health care decisions varies according to the individual and the complexity of the decision at hand. Physicians must make a determination of capacity to consent for a child just as they would for an adult."
- ‘Health practitioner’ refers to a member of a College under the Regulated Health Professions Act, 1991, a naturopath registered as a drugless therapist under the Drugless Practitioners Act or a member of a category of persons prescribed by the regulations as health practitioners. Examples include (but are not limited to) physicians, dentists, physiotherapists, and nurses.
- As per the HCCA, ‘treatment’ means anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other health-related purpose, and includes a course of treatment, plan of treatment or community treatment plan.
Yesterday’s blog spoke to the issue of an Application for Psychiatric Assessment (Form 1) under the Mental Health Act R.S.O. 1990. To review, upon completion of the psychiatric assessment, the patient must either be released or admitted as an involuntary patient, a voluntary patient, or an informal patient.
• Involuntary Patient: Before you become an involuntary patient, a doctor must assess you and place you on a Form 3 (Certificate of Involuntary Admission), which lasts for two weeks. The Mental Health Act speaks very specifically to the legal criteria that must be met in order for such a Certificate to be completed. An involuntary patient is not permitted to leave the hospital or psychiatric facility.
• Voluntary Patient: There is no portion of the Mental Health Act that authorizes a psychiatric facility to detain a voluntary patient. In this regard, a voluntary patient can leave the facility at any time, as long as they do not pose a risk to themselves or others. If they were to be identified as posing a risk to themselves or others, then they must be made an involuntary patient (by means of a Form 3) in order to be detained.
• Informal Patient: An informal patient is either a child under the age of 16 years, or someone who is incapable of making treatment decisions for themselves (as defined by the Health Care Consent Act) and who therefore has been admitted to the facility under the consent of another person (i.e. ‘substitute decision-maker’; usually a concerned family member). The informal patient cannot be held against their will in the hospital, however, an informal patient can be made ‘involuntary’ if a doctor deems that a Form 3 is necessary.
Jennifer Hartman, Guest Blogger
Listen to the Health Care Consent Act.
This week on Hull on Estates, Megan Connolly and Sean Graham review the Golubchuk case out of Manitoba and discuss the Health Care Consent Act of Ontario.