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Department
Law
Course
Law 3101A/B
Professor
Robert Solomon
Semester
Winter

Description
The Changing Environment 1/8/2013 4:03:00 PM  Canada has become a more legalistic and litigious society  3.5-fold increase in the number of civil suits brought against Canadian physicians between 1976 and 2010  100-fold increase in the related costs of responding to complaints and actions  Canadian Medical Protective Association (CMPA) o Organization that advises and represents physicians in legal matters o Opened almost 20000 new files involving complaints against physicians in 2010 o 2010 expenditures  $347 million  $154 million in damage awards and settlements  $117 million in legal costs  $11 million in fees for experts and consultants  Volume of litigation involving other health professionals appears to have increased as well  Health professionals who serve in an administrative capacity within an institution, agency or clinical practice will have the added burden of ensuring that their policies and practices are compatible with the increased threat of litigation and the proliferation of regulatory legislation  Factors that explain the expanding role of law in treatment: o Rise in concern about the legal rights of patients and clients  Paternalistic concepts have increasingly given way to rights-based notions of treatments  Issues traditionally framed in terms of the patients best interests are increasingly analyzed in terms of the rights of the patient and the legal obligations of his or her health providers o The law now recognizes that young, old, and physically and mentally disabled patients who are competent are entitled to make their own decisions, regardless of the wishes of their next-of-kin  Health professionals may find themselves caught between their confidentiality obligations to their patients and the expectations of parents and others who believe that they are legally entitled to be informed o Increases in public concern about specific issues, such as child abuse, violence against women and privacy o Counseling and care professionals have been subject to a growing number of complex, piecemeal statutes  Ontario enacted 4 new health statutes that came into force 1995, only to repeal 2 of them and amend the remaining 2 the following year o The law has evolved with developments in health services  No longer limited to doctors, nurses, and other traditional health professionals  Now includes: social workers; family, addictions and employment assistance counselors; and child and youth workers  Supportive housing, shelters for battered women, long-term care homes, group homes, crisis intervention programs, peer counseling, elder care, and other services now come under the health, counseling and care umbrella o Health issues have become more politicized  Hospital closings, wait times, the preservation of universal access, physician shortages, and other health issues are commonly featured in federal and provincial political platforms  Debate on the “Zamboni” procedure or “liberation therapy” to clear “obstructed” veins in the neck for Multiple Sclerosis patients o These legal and political changes in the health environment have occurred in an era of fiscal restraint  Canadian health care costs have increased steadily as a percentage of GDP  5.5% (1960)  11.6% (2011)  Health costs now constitute the largest component of provincial budgets  Governments are under pressure to streamline services and reduce costs  Many health professionals will be called upon to do more with less  Health statutes enacted since 1995 o Social Work and Social Service Work Act (1998) o Patient Restraints Minimization Act (2001) o Good Samaritan Act (2001) o Mandatory Gunshot Would Reporting Act (2005) o Long-Term Care Homes Act (2007) o Apology Act (2009) o Child and Family Services Act o Mental Health Act  Although the legal environment has become more challenging, it would be incorrect to characterize it as being hostile o Canadian courts have generally been supportive of health professionals o Our courts do not expect health professionals to have an intimate knowledge of the law, nor do they demand that all their decisions be correct  Canadian courts assess the conduct of health professionals in terms of 2 criteria: o Did they act reasonably in the circumstances, as measured by what would be expected of a reasonable person with their qualifications, training, and experience? o Did they act in good faith, in that they put the legitimate needs of their patients first? Legislation, Terms, and Concepts 1/8/2013 4:03:00 PM Part 1: Canada Health Act (CHA)  Does not provide Canadians with any legal right to publicly-funded health services  Sets out criteria and conditions that provincial health insurance plans must meet to qualify for a full federal cash contribution  Does not address the full range of health services and needs, but instead is limited to defined categories of “insured” services  Provides the legislative basis for the Federal-Provincial Health Accord  Federal-Provincial Health Accord  an agreement under which the provinces can choose to incorporate certain features in their health insurance plans in return for a financial contribution from the federal government  CHA provides that if any of the following 5 criteria, sometimes referred to as pillars of medicare, are not met, the federal government may decrease or withhold its transfer payment (s.7) o Public Administration (s.8)  Provincial health insurance plan must be administered on a non-profit basis by a public authority appointed or designated by the province  Authority must be responsible to the provincial government and subject to regular audits o Comprehensiveness (s.9)  Provincial health care insurance plan must cover “all insured health services provided by hospitals, medical practitioners or dentists”  The Act lists specific and general services that the provinces must insure  Provinces may choose to insure additional services on their own terms o Universality (s.10)  Insured persons must be entitled to all insured health services on a uniform basis  “Insured persons” all residents of the provinces, except members of the Canadian Forces and the RCMP, federal prisoners, visitors, and transients  The Canadian Forces, RCMP and federal prisoners are covered under a federal health plan  Transients  landed immigrants and returning expatriates o Portability (s.11)  Provincial insurance plan must not impose a minimum residence or waiting period exceeding 3 months before residents become eligible for insured services  Provide coverage for insured persons who are temporarily out of province or who are subject to a waiting period in a new province  Provinces can require residents who are temporarily absent from the province to obtain consent from the public authority for any elective insured health services o Accessibility (s.12)  Health care must be provided on uniform terms and on a basis that does not directly or indirectly impede reasonable access to insured services  Payment for all insured health services must be based on a tariff authorized by provincial law  Payments to hospitals must be based on the costs of the insured services provided  To qualify for a full cash contribution, the provincial insurance plan cannot provide any payment for an insured service that is subject to “extra-billing” (s.18)  “User charges” cannot be permitted (s.19)  Province must provide the federal Minister of Health with the information prescribed by the regulations and acknowledge the federal cash transfer in any public documents, advertising, or promotional materials relating to insured health services (s.13)  Current Federal-Provincial Health Accord ends in 2014 o Provinces will be pushing the federal government to increase the health transfer, which in 2009/10 constituted less than 14% ($23.9 billion) of total spending ($182.1 billion) on health services Part 2: Common Criminal Offences, Civil Law Process, and Selected Tort Actions Common Criminal Law Offences  Assault; Assault with a Weapon or Causing Bodily Harm; and Aggravated Assault o Assault is often referred to as “simple assault” o Most serious is aggravated assault o Assault includes 2 main categories of conduct (s. 265(1)):  Intentionally applying force to another person without consent  Attempting or threatening to apply force to another person o Committing an assault while carrying, threatening to use, or using a weapon (or imitation weapon) constitutes assault with a weapon (s. 267(a)) o Assault causing bodily harm applies to any assault that causes a “hurt or injury” that is more than transient or trifling (s. 267(b)) o An assault that results in wounding, maiming, disfiguring, or endangering another person constitutes aggravated assault (s. 268(1)) o Consent is not a defense if the victim submits or does not resist because of the use or threat of force, fraud or the exercise of authority (s. 265(3)(b)-(d) of the Criminal Code)  Sexual Assault; Sexual Assault with a Weapon, While Threatening a Third Party or Causing Bodily Harm; and Aggravated Sexual Assault o Sexual assault  intentional application of force to another of a sexual nature, without consent, or attempting or threatening such conduct o The consent of a person under 16 years of age provides no defense to any sexual assault charge, except in 2 limited circumstances (criminal code, s. 150.1(1) and (2))  Consent will provide a defense if the complainant is 12 or 13, and the accused is less than 2 years older than the complainant and is not in a relationship of authority, trust or power with him or her  A defense of consent may be raised if the complainant is 14 or 15, and the accused is less than 5 years older than the complainant and is not in a relationship of authority, trust, or power with him or her  Sexual Exploitation o It is an offence for a person, who is in a position of trust or authority with a young person or a person on whom the young person is dependent, to engage in any sexual contact with that young person o Also an offense to invite or encourage a young person to engage in such sexual conduct  Young person  16 years of age or older, but less than 18 (s. 153(2)) o R. v. Colas  Secondary school teacher was convicted of sexual exploitation and sentenced to 20 months imprisonment for having a sexual relationship with one of his students  Providing Necessaries of Life o Parents, foster parents, guardians, and heads of a family have a legal duty to provide the necessaries of life to their children who are under 16 years of age (s. 215(1)(a))  Failure to do so, without a lawful excuse, constitutes a criminal offence if:  The children are in “destitute or necessitous circumstances”  The failure endangers their lives, or has or is likely to permanently endanger their health (s. 215(2)(a))  A similar offence exists for failing to provide necessaries of life to those under your charge, such as elderly parents, if they are unable to withdraw from your charge and provide the necessaries of life for themselves, and the failure endangers their lives, or has or is likely to permanently endanger their health (s. 215(1)(c) and (2)(b)) o R. v. J.(S.)  Couple charged with aggravated assault, endangering life, and failing to provide the necessaries of life to their child without a lawful excuse  Child lived with his grandparents for 2 years after his birth  Evidence was not conclusive regarding when the child had suffered the injuries that resulted in significant scarring and healed fractures  Charges dismissed  Insufficient evidence to prove that the couple endangered the child‟s life  Doctors agreed that when the child entered the hospital, he was malnourished, anemic, had vitamin C levels consistent with scurvy, and had 3 open wounds and scarring all over his body  Couple convicted for failing to provide the necessaries of life based on the child‟s condition upon entering the hospital  Counseling or Aiding Suicide o Everyone who counsels a person to commit suicide, or aids or abets a person to commit suicide is guilty of an indictable offence, whether or not suicide ensues (s. 241) o Rodriguez v. British Columbia (Attorney General)  Patient who was losing the physical ability to commit suicide challenged s. 241 under the Canadian Charter or Rights and Freedoms  Five-tofour decision  Supreme Court of Canada held that s. 241 did not violate the Charter  This issue is again being raised in the courts o Section 14 of the Criminal Code  No one can consent to having death inflicted upon him or herself, and such consent does not affect the criminal liability of any person who acts upon it Civil Law Process  Health professionals are more likely to be a part to a civil suit than an accused in a criminal trial  Our focus is on the civil wrongs that fall within the rubric of tort law  3 parts to a civil proceeding: o Pleadings o Discovery o Trial  Pleadings o Action begins when the plaintiff files a “statement of claim” or “writ of summons”  Sets out the basis of the claim against the defendant and the compensation that the plaintiff is seeking  Court clerk “issues” the claim by affixing the seal of the court and signing on the court‟s behalf  Plaintiff must arrange for a copy of the claim to be served on the defendant o Defendant can provide a “statement of defense” outlining the reasons why he or she disagrees with the plaintiff‟s claim  If defendant does not submit a statement of defense, the court will hold the defendant liabile  Discovery o “Examination for discovery”  Pre-trial meeting at which the parties can clarify the issue and examine the witnesses, evidence and documents that the other party intends to use at trial  Either party may offer to “settle” the dispute  If a settlement is not reached, the parties will go to trial  Trial o Plaintiff‟s case is presented first and witnesses may be called to testify o Plaintiff must prove on the balance of probabilities that the defendant committed a tort and that tort was a cause of his or her losses o Plaintiff must also establish that he or she suffered losses that are recognized in law as being recoverable and the extent of those losses o Defendant presents his or her case once the plaintiff‟s case has been presented o Lawyers can cross-examine each other‟s witnesses o Both parties summarize their case for the judge or jury o Judge or jury considers the evidence and makes a decision o If judge or jury decides that the defendant is liable, they will assess damages  Compensate the plaintiff for the injuries and losses that he or she has suffered before trial and will suffer in the future  Judge or jury attempts to put the plaintiff in the position, to the extent that money can do so, that he or she would have been in had the torn not been committed  Medical expenses, lost earnings, pain and suffering, property damages, and out-of-pocket expenses are all considered o Generally, the losing party must also pay “legal costs” o A damage award provides no guarantee of recovering compensation o An award simply permits the plaintiff to pursue various creditors‟ remedies against the defendant  If the defendant has limited insurance coverage and few personal assets, the damage may be wholly or largely unrecoverable Selected Tort Actions  Most important is the tort of negligence  2 tort actions with which health professionals should be familiar: o Battery  Intentional bringing about of any harmful or socially offensive physical contact with the person of another  Law focuses on protecting the physical autonomy and dignity of the individual  A person can recover in battery even if he or she suffered no physical harm and even if he or she was unaware of the contact at the time it occurred  Intentional touching of another person without his or her consent is generally considered to be socially offensive  Court will award substantial damages if the defendant‟s conduct is degrading  Plaintiff must establish that there has been intentional physical contact  Defendant has the burden of establishing a valid defense, such as consent  Toews (Guardian ad litem of) v. Weisner  Ms. Weisner was a public health nurse providing Hep. B vaccinations at the school attended by 11-year-old Georgia Toews  Neither parent signed the consent form  Georgia told Weisner that her parents did not want her to be vaccinated  Weisner mistakenly believed that Georgia‟s mother had given verbal consent, and vaccinated Georgia  Although no harm resulted and Weisner had a good faith belief that the parents consented, she was held liable in battery for $1000 o Assault  Defined more narrowly in tort law than in criminal law  Intentional creation in the mind of another of a reasonable apprehension of imminent physical contact  If the defendant had the apparent intent and ability to bring about a physical contact, it is irrelevant whether he or she actually intended or had the ability to do so  Issue is whether the plaintiff reasonably believed that he or she was about to be touched  Includes a threat of any harmful or socially offensive physical contact Basic Concepts of Liability  Individual Liability o Law generally holds all individuals accountable for their conduct o All health professionals are expected to exercise independent judgment and are held individually responsible for their decisions o It is not a defense to a prosecution for breach of the confidentiality provisions of the Personal Health Information and Protection Act, 2004 to argue that you were merely following hospital policy o Church elders who directed an incest victim to confront her father were held liable in negligence because their counseling increased the victim‟s emotional suffering and embarrassed her  Vicarious Liability o A person who is innocent of personal wrongdoing can be held vicariously or automatically liable for the blameworthy conduct of another o Person‟s liability arises from his or her legal relationship with the wrongdoer, rather than from any personal fault o Most common relationship giving rise to vicarious liability is that of an employer and employee o An employer is held vicariously liable for any tort that is committed by an employee in the course of employment  both can be sued and held liable o Applies to “master/servant” relationships, which typically include any position in an organization o Does not apply to independent contractors  those who perform services as people in business on their own account o An employer can also be held vicariously liable for its volunteers and others who provide gratuitous services, if their duties are performed under the employer‟s direction or control o Members of a board of directors are not vicariously liable for torts committed by the organization or its employees  Directors are only held liable when they commit a wrongful act, or order or direct another person to do so o The Canadian courts expanded employers‟ vicarious liability to include sexual abuse in certain situations o 1999 Case  SCC framed the legal test in terms of whether the employer put the employee in a position of authority and control over the plaintiff that increased the likelihood of abuse o Expansion of vicarious liability should encourage employers to carefully review their screening, hiring and monitoring policies Part 3: Synopsis of Relevant Legislation  Child and Family Services Act (CFSA), 1990 o Statutory ages of consent for stipulated services and the mandatory reporting obligation regarding children in need of protection o CFSA‟s definition of capacity and informed consent, age requirements, record keeping rules, and confidentiality provisions differ from those in the common law and HCCA (Ontario Health Care Consent Act, 1996)  Coroners Act, 1990 o Outlines the duties and responsibility of provincial coroners o Coroners are responsible for recording and investigating unexplained and suspicious deaths, and deaths that occur in specified institutions, such as jails o S.10 requires everyone who reasonably believes that a person may have died as a result of negligence, violence or misadventure, or in other suspicious circumstances, to report that suspicion to a coroner or police officer  Health Protection and Promotion Act, 1990 o Purpose  Protect the health of the public o Creates boards of health to oversee the provision of health programs and services, such as sanitization, immunization, monitoring of communicable diseases, preventative dentistry for school children, family planning, home health care for the acutely and chronically ill, and public health education o Provides for the inspection and regulation of restaurants, food processing plants, boarding houses, public pools, and other facilities o Outlines the situations in which various health agencies and professionals must report communicable diseases or dangerous conditions to the medical officers of health  Trillium Gift of Life Network Act, 1990 o Establishes statutory criteria for making both inter-vivos and post-mortem donations of organs and tissues o Prohibits those who are not competent and those who are under 16 from making inter-vivos donations of non-regenerative tissue o Governs the post-mortem donations of bodies for organ transplants, medical education and scientific research o Substitute consent strictly regulated  Mental Health Act (MHA), 1990 o Governs the administration of mental health facilities, and the criteria and procedures for voluntary and involuntary admission of patients o HCCA repealed many of MHA‟s consent and competency sections o Prohibits substitute consent to psychosurgery o Requires that every person admitted to a psychiatric facility be examined by a physician to determine that person‟s capacity to manage his or her property  Public Hospitals Act, 1990 o Governs the administration of public hospitals o Regulated areas include medical records, admission of patients, funding and appointment of medical staff, and the provision of training facilities for students o Provides for provincial grants and loans to hospitals  Limitations Act, 2002 o Stipulates the maximum amount of time that can pass between a wrongful act and a civil suit o Ontario Act establishes a standard limitation period of 2 years  Does not begin to run until the plaintiff knew or ought to have known the facts upon which the action is based, understood the harms that resulted from that wrong and was physically, mentally and psycho- logically able to commence an action Consent and Capacity (Competency) 1/8/2013 4:03:00 PM  Fundamental right includes the right to control one‟s own body, make treatment decisions, and control related information about oneself  It is important to frame the issue of consent in terms of “who is giving consent to whom for what”  The first step in analyzing consent is defining the specific context in which the issue has arisen Part 1: Common Law Principles of Consent General Principles  The relationship between health professionals and their patients is governed by the common law principles of consent  Health professionals must obtain the patient‟s consent to initiate any treatment, counseling or care  A health professional‟s mistaken belief that the patient consented, when he or she has not consented, provides no defense  Consent should be obtained in advance and cover not only the intervention, but also any related issues regarding record keeping, confidentiality and disclosure of patient information  Consent must relate to the specific treatment, counseling or care that is to be undertaken  If a patient is competent to give consent, it is his or her consent alone that is required  The consent of a power of attorney, parent or other substitute decision maker is only relevant if the patient is incapable of consenting to the proposed intervention  A competent patient may withdraw from treatment at any time for any reason  A patient‟s consent must be “voluntary,” in the sense that it is the product of his or her conscious mind  The definition of volition establishes a very low threshold test o Patients who reluctantly consent only because they will otherwise be fired, expelled or charged with the criminal offence of breaching probation are held to have consented voluntarily o The law distinguishes between volition and a patient‟s motives for refusing or consenting to treatment  To be valid, a patient‟s consent must be based on a full and frank disclosure of the nature of the proposed intervention, and its risks and benefits  In the case of counseling, the most significant risks and benefits may be psychological in nature o The patient need not understand the underlying theory or technical details of a proposed counseling program, but must have a sense of what it entails and its likely emotional consequences  Unless a statute provides otherwise, a patient may give consent explicitly, either in writing or orally, or implicitly through his or her behaviour  While the common law does not demand written consent, agencies can adopt management policies that require all employees to obtain such consents  Battrum v. British Columbia (2009) o Plaintiff fell off a horse and injured her shoulder and called 911 o Defendant paramedic touched the plaintiff in the course of taking her vital signs, and in stabilizing her shoulder in order to transport her to the hospital o Plaintiff sued defendant in battery, claiming among other things that he had no consent to touch her o Defendant‟s conduct was held to be within the reasonable scope of the treatment which the plaintiff had sought and to which she implicitly consented o Battery action was dismissed  Patients may expressly limit their consent o E.g. A patient may agree to discussing his or her problems with a psychiatrist but refuse to take antipsychotic medication  While health professionals are free to encourage a patient to rethink a decision, they cannot ignore a patient‟s explicit restrictions on the treatment relationship o If the limits that a client imposes on the service render it unworkable or useless, health professionals are under no common law obligation to enter into or remain in the relationship Exceptions to the Common Law Principles of Consent  The courts relaxed the common law requirements of consent in 3 situations: o In an unforeseen medical emergency where it is impossible to obtain a patient‟s consent, health professionals are permitted to intervene without consent in an effort to save the patient‟s life or preserve his or her health  Limited to circumstances in which immediate action is required o Once a patient has given valid consent to a treatment, it is unnecessary to obtain an additional consent for every subordinate intervention that is an inherent part of the agreed plan  It may be prudent to obtain specific consent for any aspect of the plan that poses significant risks or involves particularly sensitive legal, emotional or sexual issues  May be advisable to reaffirm consent if the patient is rash, immature or lacks judgment, or has expressed reservations about continued involvement o At one time, the Canadian courts allowed doctors to withhold treatment information from a patient, if its disclosure would undermine the patient‟s morale or discourage him or her from having needed treatment  “Therapeutic privilege to withhold information”  With the rise in concern about patients‟ rights, the courts have narrowed or expressly rejected the concept  Health professionals have discretion in how they inform a patient and the emphasis that they place on the relative risks and benefits of a treatment Part 2: Health Care Consent Act, 1996 (HCCA) Introduction  Common law principles of consent govern treatment relationships unless a statute provides otherwise  HCCA contains consent provisions which replace the common law, but only in regard to specific types of treatment provided by certain categories of health professionals  HCCA complicated rather than consolidated the Ontario law The Scope and Structure of HCCA  To what and to whom does the Act apply? o Part II of the act applies to “treatment,” which is defined broadly as “anything that is done for a therapeutic, preventative, palliative, diagnostic, cosmetic, or other health-related purpose, and includes a course of treatment or plan of treatment.” (s. 2) o However, the term “treatment” is defined as specifically excluding: capacity assessments; any treatment that poses little or no risk; examinations to determine the patient‟s general condition; taking a history; admission to a hospital, psychiatric, care, or other facility; and personal assistance services (i.e. feeding, washing, dressing, hygiene, and other routine activities of daily living) (s. 2) o Nevertheless, if a health practioner proceeds as if an excluded act (i.e. an examination to determine the patient‟‟s general condition or a treatment that poses little or no risk) were “treatment,” then the Act applies as if it were (s. 3(2)) o Part II applies to regulated health practitioners (i.e. doctors, nurses, dentists, psychologists, etc.) but not to social workers, addictions counselors, employment assistance workers, and youth workers (s. 2) o Part II contains additional provisions governing substitute consent to general and emergency admission to hospitals and psychiatric facilities o Part III of the Act governs substitute consent to admission and crisis admission to “care facilities” (i.e. nursing and old-age homes) o Part IV governs substitute consent to “personal assistance services” o Part V governs the Consent and Capacity Board  The act does not apply to orders made by a medical officer of health mandating examinations and treatment for communicable diseases, or to the regulations governing communicable disesase of the eyes of newborns  The act does not apply to substitute consent for: a procedure whose primary purpose is research; sterilizations that are not medically necessary for the protection of the person‟s health; and the removal of regenerative and non-regenerative tissue for transplantation (s. 6)  The act does not affect the common law duty of a caregiver to restrain or confine a person when immediate action is necessary to prevent serious bodily harm to the patient or others (s. 7) Principles of Consent Under HCCA  HCCA protects health practioners when they act on what they mistakenly believe is a valid consent  A health practioner shall not administer treatment unless: o He or she is of the opinion that the patient is capable in regard to the treatment and has consented; or o He or she is of the opinion that the patient is incapable in regard to the treatment and the patient‟s substitute decision maker has consented in compliance with the Act (s. 10(1))  Elements of a valid consent (s. 11) o The consent must relate to the proposed treatment o The patient must be adequately informed prior to consenting o A consent is informed if the practioner has answered the person‟s questions and the person has received information about:  The nature of the treatment  Its expected benefits  Its material risks and side effects  Alternative courses of action; and  The likely consequences of not having the treatment o The consent must be given voluntarily o The consent may be given expressly or implicitly o The consent must not be obtained by misrepresentation or fraud  Consent to treatment include consent to variations or adjustments in the treatment that pose similar risks and benefits. It also includes consent to the same treatment in a different setting (s. 12)  Consent obtained by one health practioner toa treatment plan constitutes consent to the other health professionals who are providing treatments that are included in the plan (s. 13)  If capable, a patient may withdraw consent at any time. If a patient is incapable, his or her substitute decision maker may withdraw consent (s. 14)  Health practitioners who provide treatment based on a consent that they, on reasonable grounds and in good faith, believe to be sufficient under the Act cannot be held liable for administering treatment without consent. (s. 29(1)) Similarly, practioners are protected if they fail to provide treatment based on an apparently valid refusal to consent, or if they withhold or withdraw treatment based on an apparently valid treatment plan (s. 29(2) and (3)) Health practioners are also entitled to rely on a subsitute decision maker‟s consent or refusal of consent, unless doing so is unreasonable (s. 29(6))  Whiel these provisions protect practioners from civil liability and prosecution under the Act, it does not alter a practitioner‟s potential liability, if any, under the federal criminal law Part 3: Consent Forms  Patient may provide express consent orally or in writing  Routine appointment or consultation  written consent typically unnecessary o Should be noted in the patient‟s chart that the proposed service and its risks, benefits and alternatives were explained and the patient consented  Advisable to obtain a written consent for any service that involves significant risks, is complex or innovative, or entails particularly sensitive issues  Written consent may be preferable if there will be an ongoing treatment relationship or a series of interactions over an extended period time  Written consent is preferable if the patient is immature, rash, potentially violent, at risk, or otherwise particularly challenging  Patient‟s signature does not have to be witnessed  A signed consent form does not provide definitive proof of consent, but rather only some evidence of consent  Signed consent form is only as good as the information that it contains and the circumstances in which it was signed o Issue for a court is not whether the patient signed a piece of paper, but rather whether he or she consented to the proposed intervention based on an understanding of its nature, risks, benefits, and alternatives o If the consent form is written in complex language, presented as a mere technicality, or is framed in vague and general terms, it may be invalid  The consent form should: o Identify the specific treatment o Explain the nature, benefits and risks of the proposed intervention o Outline the reasonable alternatives, if any; and o Be consistent with the verbal explanation o Language in the form should be readily understandable to the client o Be identified as having legal significance, and should not be presented as a mere formality  The health professional should ensure that the patient is able to read English and understand the form‟s legal significance o If there are any concerns about a patient‟s ability to read English, the form should be read out loud to the patient o Should be noted in the record that the form was read aloud before the patient was asked to sign it  Reid v. Maloney (2011) o Chiropractor held liable in negligence for failing to obtain an informed consent o Court found that the chiropractor failed to inform the patient that he intended to manipulate her spine in the precise location of her previous spinal surgeries o Patient was not informed of the availability of other treatments or their risks o Court held that the consent form could not constitute informed consent because it did not explain the risks specific to the patient‟s treatment  Signed consent form merely documents the patient‟s consent, it provides no protection if the health professional is negligent in performing the service o Consent form is not a waiver of liability  Patient‟s consent can also be documented by recording the consent discussion in a patient‟s record Part 4: Capacity To Consent To Personal Care  Patient‟s consent is only valid if he or she is capable to give or refuse consent to the proposed intervention  “Capacity” and “competency” can be viewed as synonyms  Frame capacity issues precisely o Does the capacity issue relate to: a financial decision; consent to treatment, counseling, personal assistance services, or admission to a facility; or consent to release of information? Capacity to Consent Under HCCA  Principles identical to the common law principles of competency  Ontario courts appear to have assumed that, in the absence of a statute to the contrary, HCCA capacity provisions apply to all health services, and to all treatment, counseling and care professionals  Principles: o A person is capable of consenting to treatment, admission to a care facility or a personal assistance service if he or she is able to understand the information relevant to making that decision, and is able to appreciate the reasonably foreseeable consequences of consenting or refusing consent (s. 4) o A person‟s capacity concerning the same treatment may change over time (s. 15(2)) o If a person regains capacity, it is his or her decision that governs and not that of the substitute decision maker (s. 16) o A person may be capable of consenting to some treatments, but not others (s. 15(1)) o A person is presumed to be capable with respect to treatment, admission to a care facility and personal assistance services. A person is entitled to rely on this presumption, unless he or she has reasonable grounds to believe otherwise (s. 4(2) and (3))  Principles apply whether a person is an adult, a minor, or physically or developmentally disabled  Test of capacity sets a low threshold o Even if a patient is high, intoxicated, committed under the mental health legislation, vulnerable, frail, rash, or immature, he or she may be competent to consent  Test of competency relates to a person‟s ability to understand information and not to the wisdom or reasonableness of his or her decision  A patient must be found to be either competent or not competent to make a decision o If a patient is found to be competent, then it is his or her decision that is determinative  Re C. (adult: refusal of medical treatment) (1994) o 68 year old man, suffering from paranoid schizophrenia, developed gangrene in his foot o Surgeon‟s prognosis was that the man had only a 15% chance of survival without amputation o Man refused to consider amputation and wanted an order prohibiting the hospital from operating without his express written consent o In determining whether the man had sufficient capacity to refuse treatment, the court had to determine whether his capacity was so reduced by his chronic mental illness that he did not sufficiently understand the nature, purpose and effects of the proposed medical treatment o Although the man‟s general capacity to make a decision had been impaired by schizophrenia, there was evidence that he had understood and retained the relevant treatment information, considered it and had arrived at a clear choice o Presumption in favour of the plaintiff‟s right to self-determination had not been displaced and the Court granted the order  Neto v. Klukach (2004) o Ms. Neto was diagnosed in her teens as having a bipolar affective disorder and had been on Lithium for many years o During her last hospital admission, Ms. Neto objected to the anti-psychotic drugs that she was prescribed  Doctor found her to be incapable of making treatment decisions; conclusion was based on her refusal to acknowledge that she had a bipolar disorder or was currently maniac, and her delusional beliefs about Lithium and her other medication o Consent and Capacity Board upheld the doctor‟s decision  Ms. Neto was able to understand the information relevant to her treatment  She did not have the ability to appreciate the reasonably foreseeable consequences of consenting or refusing consent  Ms. Neto appealed the Board‟s decision o Court stated that the key issue in determining if patients can appreciate the consequences of their treatment decisions is whether they have the ability to evaluate the relevant information o In resolving this issue, the Court adopted 3 indicators:  While patients need not admit that they are mentally ill, they must be able to acknowledge that they are affected by manifestations of what others call a mental illness  Court found that Ms. Neto acknowledged that she was „different‟ and that Lithium stabilized her symptoms  Patients must be able to assess how the proposed treatment and its alternatives, including no treatment, could affect their quality of life  Court found that Ms. Neto could assess the impact of her decision, which was based on her previous negative experiences with the drugs  The patient‟s decision must not be “substantially” based on delusional thinking  While Ms. Neto had certain delusional thoughts, this was not the basis for her objections to the medication  Even after Ms. Neto had been given antipsychotic medication that made her outwardly calmer and more coherent, she reiterated her opposition to the medication o Court concluded that Ms. Neto had the ability to appreciate the consequences of her decision and granted her appeal  D‟Almeida v. Barron (2010) o The appellant, who suffered from a delusional disorder, believed he was the rightful King of Canada o He was unable to recognize that he had a mental disorder and believed that his hospitalization was due to an attempt to keep him from the throne o Consent and Capacity Board found the plaintiff to be incapable and he was subsequently treated with antipsychotic medication o After waiting the required period, the appellant again applied to the CCB to challenge the finding that he was incapable  Condition improved while on the medication  Still believed he was the rightful King  Testified that he would prefer to remain hospitalized rather than take the medication  Stated that the medication had no positive impact on his condition and that he would feel better without it  Board concluded that the appellant remained incapable, as he had no insight into his mental illness and no real appreciation that his condition would continue to improve if he remained on the medication o Appellant applied to the Superior Court  Among other things, the appellant challenged the test of capacity in section 4 of HCCA as being so vague as to violate the right to liberty under section 7 of the Charter  Superior Court and Court of Appeal upheld the CCB‟s decision o Court of Appeal noted that the Supreme Court of Canada had clearly defined HCCA‟s test of capacity in Starson o Court of Appeal also upheld the CCB‟s findings that the appellant was unable to appreciate that he was mentally ill and that he erroneously believed booth the medication had no positive impact and that his condition would improve without it A Patient‟s Rights Under HCCA on Being Found Incapable  Health practitioners who find a patient to be incapable must provide information on the consequences of that finding to the patient (s. 17)  A patient who is found to be incapable may apply to the Consent and Capacity board (CCB) to review the practioner‟s finding on incapacity o Does not apply to a patient who has a “guardian of the person” with authority to consent or refuse consent to treatment  Except in emergencies and other specified circumstances, no treatment can be undertaken, if the incapable patient has applied to the CCB to review the finding of incapacity or to appoint a representative  A person who is 16 years of age or older and incapable may apply to the CCB to appoint a representative to give or refuse consent on his or her behalf, if the person does not already have a guardian or power of attorney for personal care  Individuals may apply to the CCB to be named an incapable person‟s personal representative o The CCB may appoint the person named by the patient, or may appoint another person as representative, unless the patient objects to that other person o The CCB must be satisfied that the proposed representative has consented to the appointment, is capable and at least 16 years of age, and the appointment is in the incapable person‟s best interests (ss. 33, 51 and 66)  The decision of the CCB may be appealed to the courts (s. 80) and, except in limited circumstances, no treatment can be provided until the court resolves the matter (s. 18(3)(d)) o Similar provisions apply to a finding that a patient is incapable of consenting to admission to a care facility or is incapable of making decisions about personal assistance services Prior Expressed Wishes (Advance Directives or Living Wills)  Under section 5(1) of HCCA, a person who is 16 and capable may express binding wishes concerning his or her future treatment, personal assistance services or admission to a hospital, psychiatric or care facility o May be included in a power of attorney or expressed in any other form o May be communicated orally or in writing )s. 2) o Later wishes prevail over earlier wishes (s. 3)  The lack of safeguards in section 5(1) is problematic o A rash or imprudent statement that a capable person makes about rejecting treatment may come back to haunt him or her as a binding advance directive once he or she becomes incapable o Since the Act presumes that all individuals are capable, there is no requirement for any evidence or proof that a person was capable when the wish was expressed o A substitute decision maker‟s unsubstantiated claim that the person has expressed a wish is sufficient  S. 5(1) does not require any independent, third party or documented proof that the patient had in fact expressed any such wish Capacity to Manage Property Under the Substitute Decisions Act, 1992  A person is capable of managing property if he or she is able to understand the information relevant to making a decision and is able to appreciate its reasonably foreseeable financial consequences (s. 6)  The test of capacity for property management addresses the individual‟s ability to understand information and anticipate the consequences of his or her decisions  Park v. Park (2010) o In August 2008, Mrs. Park appointed her husband as her power of attorney for personal care and one of her daughters as her power of attorney for property o The next year, Mrs. Park moved out of the matrimonial home to live with one of her other children, and commenced an action to sell the home and seek accounting for monies withdrawn from her bank account or other sources by her power of attorney for property o Mr. Park sought a court order declaring his 77 year old wife to be mentally incompetent and to have him appointed as her guardian  Claimed that she had been taken from the matrimonial home against her will and was unable to make her own personal care and property decisions o Mrs. Park denied that she was incompetent and began divorce proceedings o Court dismissed Mr. Park‟s application stating that a person‟s right to make personal care and property decisions should only be removed in the clearest of cases o While Mrs. Park may have had health problems which might have limited her capacity, there was no present evidence of any such condition  4 of the 5 children submitted affidavits attesting to Mrs. Park‟s competency, as did the paralegal who prepared her new powers of attorney  Capacity accessor indicated that Mrs. Park had shown a clear understanding of her financial decisions and an appreciation of why her decisions were correct o Court noted that no harm would be done in dismissing the application, because Mrs. Park had powers of attorney for personal care and property Minors and Capacity  No set age of consent to treatment at common law or under HCCA  General test of capacity applies, namely whether the child can understand the information relevant to making the decision and appreciate its reasonably foreseeable consequences  While health professionals can encourage a capable youth to involve his or her parents, they cannot contact or disclose information to the parents without the youth‟s consent  Despite the absence of a set age of consent, almost all of the children in reported cases are at or above the age of puberty  Some courts have reframed the capacity test for youth in terms of “the mature minor rule”  C. v. Wren (1986) o C, a pregnant 16 year old, left home and made arrangements for an abortion  Parents opposed the abortion  Parents sought to prevent the procedure by challenging C‟s capacity to consent o Court concluded that C understood the nature of the procedure and its risks  Competent to give a valid consent and her parents‟ wishes were not relevant  Parental right to make treatment decisions for a child terminates if and when the child achieves a sufficient understanding and intelligence to fully comprehend the proposed treatment  Re Duek (1999) o 13-year old boy refused further chemotherapy and proposed surgery, which the paediatric oncologist indicated had a 65% chance of resulting in a recovery o The boy believed his father, who told him that God would heal him and that there was a non-surgical treatment in California and Mexico that had a 85% to 90% cure rate  This “treatment” was not medically recognized  No evidence that it had any beneficial effect o Psychologist and psychiatrist indicated that the boy had no developmental impairment that would prevent him from being competent  Boy was less mature than an average 13 year old, and his father was a dominating authority figure who made the rules in the house o Court stated that if the boy were a mature minor (i.e. competent), then his wishes would be respected  Court considered the child‟s age and maturity, the extent of the child‟s dependency on his or her guardians, and the complexity of the treatment  Boy was not able to understand the relevant medical information or appreciate the consequences of the proposed treatment o Boy was not a mature minor an d an order was made extending the Minister‟s authority to make medical decisions on his behalf Statutory Ages of Consent  A number of statutes require a person to be above a certain age to give a legally valid consent  The age of consent provisions in the Mental Health Act were repealed with the introduction of the new health legislation in the 1990s  While the new legislation contains minimum ages for creating or serving as power of attorney, it contains no minimum age for consenting to treatment, personal assistance services or admission to a facility  The 2 most relevant sets of statutory age provisions are contained in the Child and Family Services Act (CFSA) and the Education Act  CFSA o Applies to defined “caregivers” and “service providers” who are providing specific “services” under the auspices of the Ministry of Community and Social Services o Establishes a 3-tiered age of consent to the provision of these services o A competent person who is 16 years of age or older may consent, without parental knowledge or approval, to any service (s. 27(1)) o If a person is under the age of 16, parental or guardian consent is required for residential care (s. 27(2)) and the administration of psychotropic drugs (s. 132(1)(b)) o A competent child who is 12 or older may consent to counseling without parental knowledge or approval  If the child is under the age of 16, the counselor is required to advise the child of the desirability of involving his or her parents or guardians (s. 28) o Does not address the issue of whether a competent child under the age of 12 can consent to counseling without parental consent  Education Act o 2 age provisions that may be directly relevant to health professionals  Parental consent in writing is needed to conduct intelligence or personality testing of a pupil who is under 18 years of age  The Education Act grants both a pupil and his or her parents, if the pupil is under 18, a right to access the pupil‟s Ontario Student Record (OSR) (s. 266(3)) o Except for intelligence and personality testing, the Education Act does not prevent schools from offering treatment, assessment, referral, or counseling services to competent students under the age of 18 without parental consent  Since the Act is silent on these issues, the common law principles of consent and capacity apply  If records of these services are kept in the OSR, the student‟s parents would have a statutory right of access until the student reaches 18 o In an effort to avoid controversy, some school boards refused to provide counseling or referral services to students who are under 18 years of age without parental consent Substitute Consent 1/8/2013 4:03:00 PM  Issue of substitute consent only arises after it is determined that a patient lacks capacity to make the treatment, personal assistance services, admission, or property management decision in issue  The common law principles of substitute consent ha
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