YOUR RIGHT TO INFORMED CONSENT
In Ontario, under the Health Care Consent Act, all persons are presumed to be capable to make decisions with respect to treatment, admission to a care facility, and personal assistance services. Health Care Consent Act 4(2)
Health practitioners may rely on this presumption of capacity unless they have reasonable grounds to believe that the person is incapable. Health Care Consent Act 4(3)
A person is capable with respect to a treatment, admission to a care facility or a personal assistance service if the person is able to understand the information that is relevant to making a decision about the treatment, admission or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. Health Care Consent Act 4(1)
PHYSICIAN’S OBLIGATION TO OBTAIN CONSENT
According to Ontario’s Health Care Consent Act:
(1) A health practitioner who proposes a treatment for a person shall not administer the treatment, and shall take reasonable steps to ensure that it is not administered, unless,
(a) he or she is of the opinion that the person is capable with respect to the treatment, and the person has given consent; or
(b) he or she is of the opinion that the person is incapable with respect to the treatment, and the person’s substitute decision-maker has given consent on the person’s behalf in accordance with this Act. 1996, c. 2, Sched. A, s. 10 (1).
ELEMENTS OF CONSENT
11 (1) The following are the elements required for consent to treatment:
1. The consent must relate to the treatment.
2. The consent must be informed.
3. The consent must be given voluntarily.
4. The consent must not be obtained through misrepresentation or fraud. 1996, c. 2, Sched. A, s. 11 (1).
WHAT IS INFORMED CONSENT
According to the Health Care Consent Act
(2) A consent to treatment is informed if, before giving it,
(a) the person received the information a reasonable person in the same circumstances would require in order to make a decision about the treatment; This includes
1. The nature of the treatment.
2. The expected benefits of the treatment.
3. The material risks of the treatment.
4. The material side effects of the treatment.
5. Alternative courses of action.
6. The likely consequences of not having the treatment.
Consent to treatment is also informed if the person received responses to his or her requests for additional information about those matters.
WITHDRAWAL OF CONSENT
14 A consent that has been given by or on behalf of the person for whom the treatment was proposed may be withdrawn at any time,
(a) by the person, if the person is capable with respect to the treatment at the time of the withdrawal;
(b) by the person’s substitute decision-maker, if the person is incapable with respect to the treatment at the time of the withdrawal. 1996, c. 2, Sched. A, s. 14.
OBLIGATIONS OF THE PHYSICIAN
According to the College of Physicians and Surgeons of Ontario Physicians must be aware of and comply with all of the requirements in the Health Care Consent Act
College of Physicians and Surgeons of Ontario, Consent to Treatment, Policy: General Expectations https://www.cpso.on.ca/Physicians/Policies-Guidance/Policies/Consent-to-Treatment
Physicians must obtain valid consent before a treatment is provided.
Patients and substitute decision-makers (SDMs) have the legal right to refuse, withhold, or withdraw consent to a treatment, and physicians must respect this decision even if they do not agree with it.
Physicians are advised to consider and address language and/or communication issues that may impede a patient’s ability to give valid consent.
https://www.cpso.on.ca/Physicians/Policies-Guidance/Policies/Consent-to-Treatment#Endnotes
MISREPRESENTATION OR FRAUD:
Physicians must ensure that consent is not obtained through misrepresentation or fraud: Physicians must be frank and honest when interacting with patients, including when conveying information about the proposed treatment.
College of Physicians and Surgeons of Ontario https://www.cpso.on.ca/Physicians/Policies-Guidance/Policies/Consent-to-Treatment#Endnotes
According to the College of Physicians and Surgeons of Ontario: Physicians must document in the patient’s record information regarding consent to treatment where the treatment is likely to be more than mildly painful, carries appreciable risk, will result in ablation of a bodily function, is a surgical procedure or an invasive investigative procedure, or will lead to significant changes in consciousness.
College of Physicians and Surgeons of Ontario, Consent to Treatment, Documenting Consent https://www.cpso.on.ca/Physicians/Policies-Guidance/Policies/Consent-to-Treatment
According to the Canadian Medical Protective Association The obligation to obtain informed consent must always rest with the physician who is to carry out the treatment or investigative procedure. This obligation may be delegated in appropriate circumstances (to a PGY trainee for example) but before assigning this duty to another, the treating physician should be confident the delegate has the knowledge and experience to provide adequate explanations to the patient.
Consent: A Guide for Physicians, Canadian Medical Protective Association https://www.cmpa-acpm.ca/en/advice-publications/handbooks/consent-a-guide-for-canadian-physicians#disclosure
Physicians have a duty to take reasonable steps so as to be relatively satisfied that the patient does understand the information being provided, particularly where there may be language difficulties or emotional issues involved.
Consent: A Guide for Physicians, Canadian Medical Protective Association https://www.cmpa-acpm.ca/en/advice-publications/handbooks/consent-a-guide-for-canadian-physicians#disclosure
LIABILITY IN MEDICAL ASSAULT AND BATTERY
Medical battery occurs when the doctor or other medical professional violates your right to decide what kinds of medical treatments you will receive and which you do not wish to receive.
According to the Canadian Medical Protective Association: A physician may be liable in assault and battery when no consent was given at all or when the treatment went beyond or deviated significantly from that for which the consent was given. Allegations of assault and battery might also be made if consent to treatment was obtained through serious or fraudulent misrepresentation in what was explained to the patient.
CMPA: Consent: A Guide for Physicians https://www.cmpa-acpm.ca/en/advice-publications/handbooks/consent-a-guide-for-canadian-physicians#assault
https://www.speakupontario.ca/resource-guide/consent/
Robins J. A. of the Ontario Court of Appeal described the right to refuse treatment as being the premise for the doctrine of informed consent when stating: “The doctrine of informed consent has developed in the law as the primary means of protecting a patient’s right to control his or her medical treatment. Under the doctrine, no medical procedure may be undertaken without the patient’s consent, obtained after the patient has been provided with sufficient information to evaluate the risks and benefits of the proposed treatment and other available options . . .
… The right of self-determination, which underlies the doctrine of informed consent, also obviously encompasses the right to refuse medical treatment. A competent adult is generally entitled to reject a specific treatment or all treatment, or to select an alternative form of treatment, even if the decision may entail risks as serious as death and may appear mistaken in the eyes of the medical profession or of the community. . . The doctrine of informed consent is plainly intended to ensure the freedom of individuals to make choices concerning their medical care. For this freedom to be meaningful, people must have the right to make choices that accord with their own values, regardless of how unwise or foolish those choices may appear to others.”
Malette v. Shulman,(1990) 72 O.R. (2d) 417 (C.A.) at 423-424 aff’g (1987), 63 O.R. (2d) 243 (H.C.J.) [hereinafter Malette]. (https://www.lerners.ca/wp-content/uploads/2006/03/General-Principles-of-Medical-Malpractice-Litigation.pdf )
INFORMED CONSENT AND THE UN CRPD
Article 21 of the CRPD says: State parties shall take all appropriate measures to ensure that persons with disabilities can exercise the right to freedom of expression and opinion including freedom to seek, receive and impart information and ideas on an equal basis with others… including by: (a) Providing information intended for the general public to persons with disabilities in accessible formats and technologies appropriate to different kinds of disabilities in a timely manner and without additional cost.
UN Convention on the Rights of Persons with Disabilities and Optional Protocol Article 21 https://www.un.org/disabilities/documents/convention/convoptprot-e.pdf
Article 25 of the CRPD states States Parties shall: Require health professionals to provide care of the same quality to persons with disabilities as to others, including on the basis of free and informed consent.
Article 25 UN Convention on the Rights of Persons with Disabilities and Optional Protocol https://www.un.org/disabilities/documents/convention/convoptprot-e.pdf