Who is authorized to give consent (substitute decision makers) Health Care Consent Act

Transcription

1 Mdule 7 Cnsent In this mdule yu will learn abut Health Care Cnsent Act including Elements f cnsent Definitins including Capable Prpser Treatment Curse and plan f treatment Activities nt cnsidered t be treatment Wh is authrized t give cnsent (substitute decisin makers) Exceptins in emergency treatment Cnsent guidelines fr members f CMRTO Steps t btaining cnsent Resurces t include with Mdule 7 Health Care Cnsent Act WYMKA health care cnsent act CMRTO Standards f Practice 1

2 Mdule 7: Cnsent The Health Care Cnsent Act (HCCA) is the act gverning patient cnsent t treatment in Ontari. As a member f the CMRTO, yu are cnsidered a health practitiner fr the purpses f the HCCA and need t be familiar with its requirements. As its central principle, the HCCA prvides that a health practitiner wh prpses a treatment t a persn shall nt administer the treatment and shall take reasnable steps t ensure that it is nt administered unless they believe that the persn is: Capable with respect t the treatment, and has given cnsent; r Incapable with respect t the treatment, and anther persn has given cnsent in accrdance with the HCCA. This means that any health practitiner wh prpses a treatment t a persn must nt administer the treatment, and must take reasnable steps t ensure that the treatment is nt dne unless a valid cnsent has been given. Thus, in rder fr cnsent t be valid, an individual must be capable f cnsenting. Cnsent Capacity Explained here are a number f terms used in the HCCA, which have specific meaning in this legislative cntext. It is imprtant that members understand these terms and cncepts used in the legislatin in rder t cmply with its requirements. Capable: A patient is capable f making a treatment decisin if they are able t: Understand the infrmatin that is relevant t making a decisin abut the prpsed treatment, and Appreciate the reasnably freseeable cnsequences f accepting r refusing the treatment, r f making n decisin 2

3 Cnsent: In giving cnsent, the patient s cnsent must: Relate t the treatment Be infrmed Be given vluntarily, and Nt have been btained thrugh misrepresentatin r fraud. Prpser: Under the HCCA, the health practitiner wh prpses the treatment is respnsible t assess the capacity f the patient and t btain the infrmed cnsent. The prpser is the health practitiner wh is: Respnsible fr deciding what treatment shuld be ffered Able t prvide the infrmatin which a reasnable persn in the same circumstances wuld need t give infrmed cnsent, and Able t answer questins abut the infrmatin Treatment: Treatment is defined as anything that is dne fr a therapeutic, preventative, palliative, diagnstic, csmetic r ther health-related purpse, and includes a curse r plan f treatment. Curse f Treatment: A curse f treatment is defined as a series r sequence f similar treatments administered t a persn ver a perid f time fr a particular health prblem. Plan f Treatment: A plan f treatment is defined as a plan that: Is develped by ne r mre health practitiners Deals with ne r mre f the health prblems that a persn has and may, in additin, deal with ne r mre f the health prblems that the persn is likely t have in the future given the persn s current health cnditin, and Prvides fr the administratin t the persn f varius treatments r curses f treatment and may, in additin, prvide fr the withhlding r withdrawal f treatment in light f the persn s current health cnditin. Fr the full text f the HCCA, please cnsult the Gvernment f Ontari s website at: 3

4 Guidelines fr Members f CMRTO Only a health practitiner wh has the knwledge t btain infrmed cnsent including being able t answer the persn s questins abut the treatment is able t btain an infrmed cnsent t the treatment. The health practitiner giving an rder fr a treatment is the persn respnsible fr ensuring that infrmed cnsent fr the treatment is btained. A health practitiner perfrming a treatment under the rder (ften the case fr members f CMRTO) shuld be able t rely n the fact that the patient presents with a requisitin as prf that infrmed cnsent has been btained. If a plan f treatment is t be prpsed fr a patient, ne health practitiner may, n behalf f all the health practitiners invlved in the plan f treatment: Prpse the plan f treatment Determine the persn s capacity with respect t the treatments referred t in the plan f treatment, and Obtain cnsent r refusal f cnsent either frm the patient, if they are capable f ding s, r the patient s substitute decisin-maker if the patient is fund incapable. Members perfrm prcedures n the basis f an rder frm a physician. Therefre, in mst circumstances it is the respnsibility f the physician t assess the capacity f the patient and t btain infrmed cnsent. Althugh the respnsibility t btain the patient s infrmed cnsent rests in mst circumstances with the physician, as a member f CMRTO yu still have certain bligatins which include the fllwing: Yu shuld ensure that the physician btained the patient s cnsent by determining whether cnsent is dcumented in the patient recrd, r there is ther reasnable evidence that cnsent was btained. Befre beginning the prcedure r treatment, yu shuld fully explain t the patient what yu are ging t d and why. This is particularly imprtant when the prcedure frms part f a plan r curse f treatment. There may be indicatins that the patient has withdrawn cnsent t the prcedure, r they may even resist. Assuming the patient is mentally capable, they can withdraw cnsent t a prcedure at any time. If there are any indicatins cnsent has been withdrawn, yu shuld nt perfrm the prcedure until the patient s cnsent is btained. Althugh a patient may have been capable f giving cnsent at the beginning f a curse f treatment they may becme incapable at sme stage during the curse f treatment. Especially in the cntext f radiatin therapy, yu must be aware f signals that the patient may n lnger be capable f giving cnsent. Yu may be bliged t ensure that the physician assesses the patient s capacity during a curse f treatment in rder t ensure the patient s cntinuing cnsent t the curse f treatment. If yu are in dubt abut whether the patient is capable f giving cnsent, r has given an infrmed cnsent, yu shuld refer the patient back t the respnsible physician. 4

5 Yu shuld make certain that yur hspital r facility has prtcls in place which address the fllwing: Wh is the apprpriate health care prvider t infrm the patient abut the prpsed treatment and t btain the cnsent? Hw will the patient s cnsent be dcumented s that ther members f the health care team knw the cnsent was btained? What steps shuld be taken if a health care prfessinal has reasn t believe that the patient s cnsent was nt infrmed, that the patient has changed their mind, r that they are nt, r were nt capable f giving cnsent t the prpsed treatment? Review f the Health Care Cnsent Act In rder t fully appreciate these guidelines, it is imprtant t understand in mre depth sme f the prvisins f the HCCA as utlined here. Activities nt cnsidered treatment under the HCCA Certain activities that wuld therwise be cnsidered a treatment have been specifically excluded frm the Act. Sme f these specific exclusins are: The assessment r examinatin f a persn t determine the general nature f the persn s cnditin The taking f a persn s health histry The cmmunicatin f an assessment r diagnsis The admissin f a persn t a hspital r ther facility Assistance with, r supervisin f, hygiene, washing, dressing, grming, eating, drinking, eliminatin, ambulating, psitining r any ther rutine activity f living A treatment that in the circumstances pses little r n risk f harm t the persn. Since the use f inizing radiatin, radipharmaceuticals, electrmagnetism and sundwaves is dne either fr a diagnstic r therapeutic purpse, and it is unlikely that any f the exceptins apply, it can be assumed the prcedures perfrmed by the members f CMRTO will be gverned by the HCCA. Cnsent must be specific and infrmed Under the HCCA, cnsent must be specific and infrmed. In rder fr the cnsent t be infrmed, the persn wh is t give cnsent must first receive infrmatin that a reasnable persn in the same circumstances wuld require in rder t make a decisin. This includes infrmatin abut: The nature f the treatment Expected benefits f the treatment 5

6 Material risks f the treatment Material side effects f the treatment Alternative curses f actin The likely cnsequences f nt having the treatment. In additin, the health practitiner must als respnd t the persn s requests fr ther infrmatin abut these aspects f the treatment. Althugh the HCCA des nt define the meaning f material risk f treatment r material side effects f the treatment, it is likely that they include: What are the "material" risks r side effects f treatment? Thse which are prbable r likely t ccur Thse which are pssible if they carry serius cnsequences Thse which a reasnable persn in the patient's specific circumstances wuld require in rder t make an infrmed decisin t give r refuse cnsent The cnsent may be in writing r it may be ral, but it must be btained befre the treatment begins. It is imprtant t nte that cnsent may be withdrawn at any time. If a patient withdraws their cnsent, the member must discntinue the treatment r prcedure. The HCCA permits a health practitiner t presume that cnsent t treatment als includes cnsent fr variatins r adjustments in the treatment, r the cntinuatin f the treatment in a different setting, s lng as the expected benefits, material risks r material side effects d nt change significantly. Language and culture may affect the giving f infrmed cnsent t treatment. The health practitiner shuld use t the best f their ability a means f cmmunicatin which takes int accunt the persn s educatin, age, language, culture and special needs. Where the health practitiner and the patient (r if the patient is incapable, the substitute decisin-maker) cannt 6

7 cmmunicate because f language, an interpreter will be required. (See als, Exceptins in Emergency Treatment belw) Wh is authrized t give cnsent t treatment? If the health practitiner prpsing the treatment believes that the patient is capable with respect t the treatment, then the patient is the persn frm whm the cnsent shuld be btained. Hwever, if the health practitiner prpsing the treatment believes the patient is incapable with respect t the treatment, then cnsent must be btained frm a substitute decisin-maker. The HCCA prvides the fllwing hierarchy f substitute decisin-makers, (in rder f authrity): (1) A guardian f the persn wh has been appinted by the curt under the Substitute Decisins Act 1992 if the guardian has authrity t give r refuse cnsent t treatment (2) An attrney fr persnal care under a pwer f attrney that cnfers the authrity t give r refuse cnsent t treatment (3) A representative appinted by the Cnsent and Capacity Bard ("the Bard) (4) A spuse r partner f the patient (5) A child (at least 16 years f age) f the patient, parent f the patient, r Children's Aid Sciety r sme ther persn wh is entitled t give r refuse cnsent t the treatment instead f the parent - with limitatins (6) A parent f the patient wh nly has a right f access (7) A brther r sister f the patient (8) Any ther relative f the patient (9) The Public Guardian and Trustee 7

8 It is imprtant t remember that the substitute decisin-maker must be at least 16 years f age (unless a parent f a patient), capable with respect t cnsenting t the treatment, available, willing t assume the respnsibility fr giving r refusing cnsent, and is nt prevented by curt rder r separatin agreement frm having access t the patient fr giving r refusing cnsent n the patient s behalf. Exceptin in emergency treatment The HCCA prvides an exceptin t btain cnsent when emergency treatment is required. It is cnsidered an emergency if a persn is apparently experiencing severe suffering r is at risk f sustaining serius bdily harm. Belw is an illustratin f the applicatin f the emergency exceptin: Is the patient mentally incapable f cnsenting t the treatment decisin? YES NO The emergency exceptin des nt apply: a persn wh is mentally capable has a right t refuse treatment even in an emergency. Will the delay required t btain cnsent prlng the suffering r put the persn at risk f sustaining serius bdily harm? YES NO The emergency exceptin des nt apply: if the delay wuld nt result in this, then the situatin is nt an emergency fr the purpses f the HCCA. The emergency exceptin applies: cnsent des nt need t be btained because emergency treatment is required. 8

9 The exceptin fr emergency treatment als applies in the fllwing circumstance: Is the patient apparently capable, but cmmunicatin cannt ccur because f a language barrier r disability? YES NO Have reasnable steps been taken t find a practical means f cmmunicating with the patient but such steps have been unsuccessful? Emergency exceptin des nt apply YES NO Will the delay required t find a practical means t cmmunicate prlng the suffering r put the persn at risk f sustaining serius bdily harm? YES NO Emergency exceptin applies 9

10 In additin, a health practitiner wh believes that a persn is mentally incapable, r where cmmunicatin cannt take place after reasnable steps have been taken, may cnduct an examinatin r diagnstic prcedure withut cnsent, if the examinatin r diagnstic prcedure is reasnably necessary t determine whether there is an emergency. As nted abve, a persn wh is mentally capable has a right t refuse treatment even if there is an emergency. Furthermre, if there is a language barrier, r the persn has a disability which prevents cmmunicatin, treatment cannt be perfrmed withut cnsent, where there is reasn t believe that the persn des nt want the treatment. Capacity and Incapacity under the HCCA Capacity has been defined abve. Capacity is specific t the treatment being perfrmed and may als depend n timing: a persn may be cnsidered incapable with respect t treatment at ne time and capable at anther time. Nr is there a fixed age at which a persn becmes capable f cnsenting t treatment. The HCCA states that a persn is presumed t be capable with respect t cnsent t treatment. A health practitiner is entitled t rely n this presumptin, unless there are reasnable grunds t believe therwise. Sme f the bservatins which may give rise t a cncern abut a persn s capacity include: The persn shws evidence f cnfused r delusinal thinking, r appears unable t make a settled chice abut treatment The persn is experiencing severe pain r acute fear r anxiety The persn appears t be severely depressed The persn appears t be impaired by alchl r drugs. The fllwing factrs n their wn shuld nt cause the health practitiner t presume that the persn is incapable with respect t a treatment: The existence f a psychiatric r neurlgical diagnsis The existence f a disability, including speech r hearing impairment A refusal f a prpsed treatment that is cntrary t the advice f the health practitiner r f anther persn A request fr an alternative treatment, r The persn s age. Steps t btain cnsent t treatment The fllwing are the steps which the health practitiner wh is prpsing a treatment must fllw in rder t btain cnsent: Determine the patient s capacity t cnsent t the prpsed treatment If the patient is capable f giving cnsent, the patient makes the decisin 10

11 If the health practitiner believes the patient is incapable, they shuld determine whether the prvisins respecting the emergency treatment f an incapable persn withut cnsent apply If the patient is incapable and the emergency treatment prvisins d nt apply, the health practitiner must cmply with their Cllege s guidelines n the infrmatin t be prvided t patients wh are fund incapable f making treatment decisins (See, fr example, the CMRTO s guidelines belw.) If, befre treatment begins, the health practitiner is infrmed that the patient either intends t apply, r has applied t the Cnsent and Capacity Review Bard (the Bard) Fr a review f the finding f incapacity, r Fr the appintment f a representative t give r refuse cnsent n their behalf, Or that anther persn intends t apply, r has applied t the Bard t be appinted representative f the incapable persn t give r refuse cnsent, the health practitiner must ensure that the treatment is nt given until certain time perids have elapsed withut an applicatin being made t the Bard (r until the Bard has made a decisin which has nt been appealed) If the health practitiner is nt infrmed that the steps referred t in the paragraph abve have been r are intended t be taken befre the treatment begins, the health practitiner must identify wh the apprpriate substitute decisin-maker is in accrdance with the prvisins f the HCCA. The health practitiner then btains cnsent t the prpsed treatment frm the substitute decisin-maker. Prtectin frm liability If treatment is administered t a persn with a cnsent that a health practitiner believes n reasnable grunds and in gd faith t be sufficient fr the purpses f the HCCA, they are nt liable fr administering the treatment withut cnsent. The HCCA als prvides prtectin if a practitiner withhlds r withdraws treatment, prvided the treatment is withheld r withdrawn in accrdance with a plan f treatment fr which a valid cnsent was btained. Offences It is prfessinal miscnduct under the Prfessinal Miscnduct Regulatin made under the MRT Act fr a member t d anything t a patient fr a therapeutic, preventative, palliative, diagnstic, csmetic r ther health related purpse in a situatin in which cnsent is required by law, withut such cnsent. Fr members f the CMRTO wh prpse a treatment special guidelines with respect t patients fund incapable f making treatment decisins Sme members f CMRTO fr example, thse wh perate an x-ray machine in breast screening prgrams may prpse a treatment, because mammgrams d nt have t be 11

12 dne n the rder f a physician when they are part f a breast screening prgram. In such cases, there is a special set f guidelines that apply with respect t patients fund incapable f making treatment decisins. The HCCA prvides certain rights t these individuals. Members wh are wrking in the breast screening prgram shuld review the special guidelines prvided in the CMRTO publicatin What Yu Must Knw Abut the Health Care Cnsent Act. This publicatin is available here. 12