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College of Physicians and Surgeons of Ontario
Consent to Medical Treatment: What YOU Need to Know

In December, the College was privileged to have as a guest speaker Katharine Byrick, a partner with the Health Law Group of Borden Ladner Gervais LLP. Ms. Byrick came to talk about the legal principles and framework for consent to medical treatment. Consent to medical treatment, a CPSO policy currently under review, is a very important topic and especially relevant to the Noteworthy audience, so we wanted to share some of her expertise.

What are your rights as a patient?

As Ms. Byrick pointed out, the most important thing patients need to understand is that every capable person has the right to consent to, or refuse to consent to, proposed medical treatment. This right is protected under the Health Care Consent Act, 1996 (HCCA). In s. 2 of the HCCA, treatment is defined, in part, as anything done “for a therapeutic, preventative, palliative, diagnostic, cosmetic or other health-related purpose…” For consent to be valid, it must relate to the proposed treatment, be informed, given voluntarily, and not obtained through fraud or misrepresentation.

In order for consent to be informed, a physician must provide a patient with the information that a reasonable person would want to know under the same circumstances, including information about the nature of the treatment, the benefits, risks, or side effects relating to the treatment, as well as information about alternative treatments and the consequences of not having the treatment.

The test for capacity has two parts, according to s. 4(1) of the HCCA:
  1. Is the person able to understand information relevant to making a decision about the treatment?
  2. Is the person able to appreciate the reasonably foreseeable consequences of a decision or lack of decision?
    In s. 4(2) of the HCCA, a person is presumed to be capable to consent to, or refuse to consent to, a proposed treatment.
What if I or a loved one is deemed ‘incapable’ of consent?
    
Following the finding of incapacity, the physician should:
  • Provide the incapable person information about the consequences of the finding
  • Identify a Substitute Decision Maker (SDM) who may consent on the incapable person’s behalf
  • Document the capacity assessment and consent discussion in the patient’s chart
The person found incapable may appeal the finding of incapacity to the Consent and Capacity Board (CCB), an independent provincial tribunal.  It’s important to remember, Ms. Byrick said, that when there is a disagreement with respect to a person’s capacity, the onus is on the physician to prove incapacity.

Who can be an Substitute Decision Maker? What must an SDM consider when making a decision?

Ms. Byrick indicated that SDMs can be chosen from the following ranked list, which is set out in s. 20(1) of the HCCA:
  1. The guardian of the person, if so authorized by law
  2. An attorney for personal care, if so authorized by law
  3. CCB-appointed representative
  4. A spouse or partner
  5. A child or custodial parent or Children’s Aid Society
  6. A parent with right of access only
  7. A brother or sister
  8. Any other relative
  9. None of the above: A Public Guardian and Trustee
The highest ranked individual(s) on the list will be the SDM if they also meet the other criteria for being a SDM in s. 20(2) of the HCCA – that they are capable with respect to the treatment, are at least 16 years of age (unless the parent of the incapable person), not prohibited by court order or separation agreement from acting in this role, are available and are willing to assume the role of SDM.  If more than one person of a given rank meets these criteria, they will be “equally ranked” SDMs.

An SDM must give or refuse to give consent according to certain principles, which are set out in s. 21 of the HCCA.  The SDM must act in accordance with an applicable “prior capable wish”. If there is no known prior capable wish, the SDM must act in accordance with the incapable person’s “best interests”. 

There is a detailed list of things that must be considered by an SDM when determining whether a proposed treatment is in an incapable person’s best interests, and these are set out in s. 21 of the HCCA.







A revised draft policy that specifies College expectations for physicians who may be contemplating and/or undertaking job actions is now open for consultation.

Key Features of the Revised Draft Policy

The proposed new title ‘Providing Physician Services During Job Actions’ clarifies that the provision of physician services is important, and in fact expected, during job actions.

The ‘Introduction’ emphasizes the protection of the public interest and describes the significant negative implications that job actions can have on patients and/or the public.

The new ‘Terminology’ section describes key terms used in the policy to clarify the range of activities captured by the revised draft policy.

The revised draft policy emphasizes the importance of providing physician services during job actions and requires that physicians:
  • First explore all alternative options that may be available to resolve the concern that has motivated their desire to withdraw services; and
  • Consider a number of factors before making the decision to withdraw services, including: what is in the best interests of patients; whether patients will be abandoned; whether the public will be deprived of access to medical care; and whether patients and/or the public will be placed at risk of harm.
If proceeding with a withdrawal of physician services, the revised draft policy requires that physicians mitigate the adverse impact of the withdrawal on patients and/or the public.

The revised draft policy clarifies that the College expects physicians will provide patients with medical care that is urgent, or otherwise necessary to prevent harm, suffering and/or deterioration during a job action. This will include ensuring patients’ health care concerns are assessed and appropriately triaged so that urgent and/or necessary medical care can be obtained.

The revised draft policy states that the College will consider any issues that may arise regarding the provision of physician services, or lack thereof, during job actions, in accordance with its duty to serve and protect the public interest.

Many physicians have already provided us with feedback on this important policy, and now it’s your turn. What medical care do you expect your physician will provide during a job action? Do you think the revised draft policy will adequately protect you in the event of a job action? Do you have any concerns about a potential withdrawal of physician services that are not addressed in this revised draft policy?  Provide us with your thoughts and opinions by February 7, 2014. Read more about this consultation and join the conversation here.

Open Consultation: Medical Marijuana

The College’s Medical Marijuana policy is currently under review. As part of this review, the College will be considering new federal regulations that significantly alter the process for accessing dried marijuana for medical purposes. This review will also help to ensure that any updates to the policy reflect current practice issues, embody the values and duties of medical professionalism, and are consistent with the College’s mandate to protect the public.

Under the former Marihuana Medical Access Program, patients were required to seek authorization to possess dried marijuana from Health Canada after obtaining a medical declaration from their physician. Under the new regulations, physicians will provide patients with a medical document to submit directly to a licensed producer, which authorizes access to a supply of dried marijuana. Functioning much like a conventional prescription, this document requires physicians to list the amount of marijuana the patient can use (dosage and period of use), and will not require Health Canada’s approval.

Are there issues not addressed in the current policy that should be addressed? If so, what are they? Here is your opportunity to provide your feedback on the Medical Marijuana policy.

Please provide your feedback by February 7, 2014.

A revised draft will be circulated for further comment before the policy is finalized.



From our Twitter page


 
January 2014

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Consultations
Your feedback informs us during the policy review process. For more information and to provide your feedback, please visit the following consultation pages.



End-of-Life Care: Certifying Death at Home
Previous topics
Topic 1: Education, Training and Continuing Professional Development
Topic 2: Advance Care Planning
Topic 3: Interprofessional Collaboration in Palliative Care
Read more and join these ongoing conversations

Proposed Amendment to Ontario Regulation 114/94

Providing Physician Services During Job Actions

Medical Marijuana

Reinstatement Decisions: Transparency Project Amendment
 

Dialogue, the College's official publication, is published four times per year.
Volume 9, Issue 4, 2013
 


Questions?
Contact one of our Advisors at:

416-967-2603
Toll Free: 1-800-268-7096 Ext. 603


Email: feedback@cpso.on.ca
 


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