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Law 3101A/B Study Guide - Midterm Guide: Chiropractic, Surrogate Decision-Maker, Antipsychotic


Department
Law
Course Code
Law 3101A/B
Professor
Robert Solomon
Study Guide
Midterm

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Ch 2 - Consent and Capacity
Overview
Common Law Principles of Consent.
Health Care Consent Act, 1996.
Consent Forms.
Capacity to Consent to Personal Care.
Prior Expressed Wishes.
Minors and Statutory Ages of Consent
Introduction
Need precision – who is giving consent to whom for what?
oIs the patient 14, 92, high, or mentally ill?
oIs the professional a school counselor or a psychiatrist?
oDoes the consent relate to “treatment,” “personal assistance services,” admission
to a long-term care home, or the release of patient information?
The principles of consent and capacity focus on autonomy.
Autonomy – a double edged sword i.e allows individuals to make wise decisions as well
as foolish decisions; at end of day the decision is the patient’s
Consent – a preliminary issue that’s addressed at the outset of the rship. Legal
principles governing consent vary from case to case.
PART 1: Common Law Principles of Consent
(a) General Principles
The patient’s consent is required before any treatment, counselling or care is
undertaken. The consent should cover not only proposed treatment but all info about
treatment.
Consent must relate to the specific treatment undertaken.
At common law, a practitioner’s mistaken belief that the patient consented, when he/she
hasn't, provides NO DEFENCE.
If the patient is capable, his or her consent alone is required, and the consent of the
patient’s substitute decision maker is irrelevant. (NB Consent of POA, parent or SDM is
only relevant if the patient is incapable of consenting to the proposed intervention) (NB!
ntn stops a HC professional from advising a patient to consult w family eg birth control to
14 yr old, but at end of day if patient says no, patient wins.)
Consent must be given voluntarily, in the sense of being the product of the patient’s
conscious mind.
A reluctant consent = valid consent (e.g. parolee, probationers, etc.) (Eg2: a patient who
reluctantly consents only b/c they will otherwise be fired, expelled or charged with the
criminal offence of breaching probation ---> still counts as having consent voluntarily)
* why is volition defined at such a low threshold? it protect the autonomy of the
individual.

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HC professionals must put ppl in the position to make informed decisions. Consent must
be based on a full and frank disclosure of the nature of the proposed treatment, and its
risks, benefits and alternatives. Increasing emphasis on putting proposed treatments in
the context of the alternatives, including doing nothing.
Patients may explicitly limit treatment. ( eg jehovah's witness refuse consent to accept
blood, anorexic patient accepts to talk with a psychiatrist but refuse to accept fluids etc)
Health practitioners can refuse to provide treatment if the limits the patient imposes
render that treatment futile or dangerous.
Unless a statute provides otherwise, consent may be given explicitly (written or oral) or
implicitly through his/her behaviour.
-->CIP: Battrum v. British Columbia. (pg 19) (Plaintif fell off horse and injured
herself. Called for 911 assistance but then, sued the defendant paramedic saying he,
among other things, had no consent to touch her. However, court held that she was the
one who seeked the first aid treatment and therefore implicitly consented thru her
actions. I.e 'when she called 911, she is implicitly consenting to para to take steps
necessary to fulfill her request' . Her battery action was dismissed.
May require signed consent:
-if treatment is non-traditional ( a new therapy or approach)
-procedure involves issues which are legally, sexually in nature
-or patient is challenging
b) Exceptions to Common Law Principles of Consent
1) In an unforeseen medical emergency where it is impossible to obtain consent or a
refusal of consent, health practitioners may intervene in an attempt to save the life, and
preserve the health of the individual. (Think emergency rooms or lay rescuers treating
unconscious accident victims)
2) Consent to surgery - an overall course of treatment or a treatment plan provides consent
to subordinate or technical procedures that are an inherent part of the surgery, course of
treatment or treatment plan. (I.e. don't have to obtain addn consent for every step that's
an inherent part of the agreed plan.) (NB!! May be advisable to obtain specific consent
for any aspect of the plan that poses significant risk/imposes a particular legal, emotional
or sexual issue.)
3) At one time, physicians had a "therapeutic privilege to withhold information" from
patients if they believed that disclosure would undermine the patient’s morale or
discourage him/her from undergoing needed treatment. ---> courts have now narrowed
or expressly rejected this concept. (i.e HC professionals have discretion in how they
inform a patient but must assume they have no right to withhold relevant info from
patient regardless of the abovementioned circumstances.)
Part 2: Health Care Consent Act, 1996 (HCCA)
(a) Introduction
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- applies to Ontario HC professionals
- this act displaces the common law principles but only in regards to certain principles and only
to certain HC professionals
(b) The Scope and Structure of the HCCA
Part2
Applies to “treatment,” (anything that is done for a therapeutic, cosmetic or any other
health care) but subject to numerous exceptions (e.g. taking a history, treatment that
involves little or no risk, admission to a treatment facility, and examinations to assess
general condition, doesn't apply to first aid, personal assistance services).
--->NB: if a HC prof believes a non treatment is treatment, the Act will apply as if it was
treatment
Applies to “regulated health practitioners,” but not social workers, youth workers,
addiction counsellors, and others.
Part II also governs substitute consent to general and emergency admission to hospitals
and psychiatric hospitals.
Part3
Governs substitute consent to admission to a “care facility” (i.e. a long-term care home).
Part 4
Governs substitute consent to “personal assistance services” (i.e. activities of daily living
washing, eating, etc.) ̶
Part 5
Governs the Consent and Capacity Board (CCB)
**NB!! The HCCA does not apply to:
orders made by a medical officer of health mandating exams and treatment relating to
communicable or virulent diseases;
regulations governing communicable diseases in the eyes of newborns;
substitute consent to research, non-medical sterilizations, and organ and tissue
transplantation; and
the common law duty of caregivers to confine and restrain a person to prevent serious
bodily harm.
(c) General Principles of Consent under the HCCA
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