Week 8 Health Care Consent Act & Personal Health Information Protection Act

Legislation for protection of patients regarding treatments 

• Health Care Consent Act (HCCA)

• Substitute Decisions Act (SDA)

Treatment

Anything done for a therapeutic, preventative, palliative, diagnostic, cosmetic, or health related purpose

Treatment does not include

a) capacity assessments under either the HCCA or Substitute Decisions Act

b) examination to determine general nature of person’s condition

c) taking the patient’s health history

d) communication of diagnosis

e) admission to hospital or other facility

f) personal assistance services

g) treatment that poses little or no risk of harm to the person

Treatment Decision Making

• Health practitioners must get an informed consent before providing treatment

• That consent must come from the patient, if mentally capable,

  • or the patient’s SDM (subistute decison maker) if the patient is not capable

• Only in an emergency may a health practitioner treat without consent

Key Elements of Valid Consent

1. Must relate to the treatment

2. Must be informed

3. Must be given voluntarily

4. Must not have been obtained through misrepresentation or fraud

Information that must be given for Informed Consent for treatment

• Nature of the treatment

• Expected benefits of the treatment

• Material risks of the treatment

• Material side effects

• Alternative course of action

• Likely consequences of not having the treatment

• Questions regarding the proposed treatment

Consent can be to

• one specific treatment

• a PLAN OF TREATMENT

Plan of Treatment

• Developed by one or more health practitioners

• Deals with one or more health problems that a person has

  • or a health problem that the person is likely to have in the future

• examples

  • chemo plan

  • rehab

Capacity to Give Consent

if

• One is able to understand information that is relevant to making the decision

• One is able to appreciate the consequences of making or not making the decision

• give informed consent, one must be capable of making the decision

Assumed Capacity

• In Ontario, you are presumed capable of making health care treatment decisions

• Decided by

  • Duty of the health care practitioner offering the treatment to determine if you are capable or not

    • If you not capable of making decision, then the healthcare provider communicates with the patient’s substitute decision-maker (SDM)

Hierarchy of SDMs (substitute decision-maker)

1. Guardian of person

2. Power of Attorney for Personal Care

3. Representative appointed by the Consent and Capacity Board

4. Spouse or partner

5. Child or parent

6. Parent with right of access

7. Brother or sister

8. Any other relative

9. Office of the Public Guardian and Trustee

Advanced Care Plan and treatment plan

• involves a health problem that the person is likely to have in the future given the person’s current health condition

  • lawyers involved

    • legalized

    • living will

    • specified earlier

  • Kicks in only when patients no longer has capacity 

  • boosts person in hierachy to ensure patients will

• The person provide directives for withholding or withdrawal of treatment due to the person’s current health condition

• describes what the person wants in the future

  • when he or she is no longer mentally capable of making decisions about treatment

• Person chooses someone to act as a SDM

  • by preparing a Power of Attorney for Personal Care

  • SDM acts if the patient becomes mentally incapable of making treatment decisions

How a person becomes SDMs (gaining “Power of Attorney for Personal Care)

1) A legalized written POAPC document

2) A written advance directive or living will

Responsibilities of SDMs

to make treatment decisions for an incapable person by: (not before)

• following the wishes of the patient when he/she was capable

• if the wishes of the patient are not known

  • the SDM must act in the best interests of the patient

Do Not Resituate (DNR) Confirmation Form

• a Confirmation of a Consent to DNR (resuscitation treatment)

• The consent is the result of a discussion

  • between the health provider and the patient

  • if capable, or the patient’s SDM, if the patient is not capable

• signed by a regulated health provider and the patient

  • is communicated to other Hospital staff, ambulance and fire personnel as to the patient’s directives about resuscitation

• if the patient or SDM tell the ambulance or fire personnel to resuscitate, they will resuscitate

Conflict between Health Practitioner and SDMs

occur if If health practitioner is in doubt that SDM is fulfilling his/her

role:

Actions that can be taken

• Confirms if SDM understands the patient’s condition implications of the illness, treatments, risks, benefits for the patient

• Health practitioner gets a second opinion from a colleague about the patient’s illness and treatment options. Colleague assess the SDM’s understanding of patient’s illness and treatment.

• An application is made to Consent and Capacity Board to direct SDM to follow advance wish(es) of patient or act in best interests or otherwise will be removed

Applications to Consent and Capacity Board

(regarding issues regarding capacity of patient)

1. Applications can be made to the Board by the patient, SDM or the healthcare provider

2. Application by patient to challenge findings of incapacity to make treatment decisions

3. Application by SDM or health practitioner for directions if patient’s wishes are not clear or are not being followed.

4. Application by SDM or health practitioner to depart from the patient’s wishes

5. Application by health practitioner to determine if SDM is acting in the patient’s best interests

Ontario’s Personal Health Information Protection Act (PHIPA)

• Enacted November 1, 2004

• Schedule A

  • – the Personal Health Information Protection Act (PHIPA)

• Schedule B

  • – the Quality of Care Information Protection Act (QOCIPA)

• Health information is:

  • a) Highly sensitive and personal in nature

  • b) must be shared among health care providers for the benefit of the individual

  • c)Disclosed for secondary purposes if it is viewed to be in the best public interest (e.g. research, public health, fraud investigation, quality assurance)

PHIPA – Health Information Practices

• Accountability

  • – for all patient health information (PHI)

• Consent

  • -Consent is required for the collection, use, disclosure of PHI

• Limit type and collection of PHI

• Rules are imposed regarding

  • Use, Disclosure, Retention of PHI

  • Accuracy of PHI (patient health information)

  • Safeguard of PHI (patient health information)

  • Individual Access to his/her PHI (patient health information)

Records Management: General Practices

• Must take reasonable steps to ensure accuracy of PHI

• Must maintain the security of PHI

• Must have a contact person to ensure compliance with PHIPA Act, respond to access/correction requests, inquiries and complaints from public

• Must have information practices/policies in place that comply with the Act

• Must make available a written statement of information practices/policies

• Must be responsible for actions of staff

Scope of PHIPA

• Health information custodians (HICs) that collect, use and disclose personal health information (PHI)

• Non-health information custodians where they receive personal health information from a health information custodian (use and disclosure provisions)

Health Information Custodians (HICs)

• Health care practitioners

• Hospitals and independent health facilities

• Homes for the aged and nursing homes

• Pharmacies

• Laboratories

• Home for special care

• A program or service for community health or mental health

Regulations that Apply to All Providers

• Can only use information in the course of providing services

• Cannot disclose any information

• Provider must ensure that all employees and agents comply with the regulations

Security Requirement

• A health information custodian takes reasonable steps to ensure that personal health information (PHI) in the custodian’s control is protected against

  • theft

  • loss

  • unauthorized use or disclosure.

• Ensure that the records containing the health information are protected against

  • unauthorized copying

  • modification

  • disposal.

• Consent is implied when disclosing personal health information to other health care custodians for the purpose of providing health care to the individual

  • (Nursing Homes, Rehabilitation Hospitals, Homes for Aged)

Right of Access and Correction to PHI Record

• An individual has a right of access to his/her records of personal health information that are in the custody or control of any health information custodian

• PHIPA provides patients the right to correct their records of personal health information

• Custodian must make the record available or provide a copy, if requested

• Custodian must respond to a patient’s request to access his/her health record within 30 days, with a possible 30 day extension

• Custodian must take reasonable steps to be satisfied of the individual’s identity

• Custodian must offer assistance if a patient’s request lacks sufficient detail of what the patient wants

Corrections to Records

• By striking out the incorrect information in a manner that does not obliterate it or

• By labeling the information as incorrect and removing it from the record, while maintaining a link to the record or

• If the correction cannot be made on the record, the custodian must ensure there is a practical system to inform persons accessing the record that the information is incorrect and where to obtain correct information

• Custodian must give written notice to all persons who access the records of the correction/s made on PHI record

Privacy and Confidentiality

Basic rights of every person

• All health care employees have an ethical and legal obligation to maintain the patients’ privacy and confidentiality

Privacy

is the right of an individual to keep personal information from being disclosed

Confidentiality

is how we as health care providers/employees treat private information once we and others receive it

• All identifiable patient information, whether written, computerized, visual or audio recorded or simply held in the memory of health professionals, is subject to the duty of confidentiality

It covers:

• Any clinical information about an individual’s diagnosis or treatment

• A picture, photograph, video, audiotape or other images of the patient

• Who is the patient’s doctor, and what clinics the patient attends and when

• Anything else that may be used to identify patients directly or indirectly

Privacy and Confidentiality Issues/conflicts

• Need to balance patient safety and treatment with respect to confidentiality

• Remember information is shared on an as “need to know” basis

• Patient can say it is okay to share information with other family members but be sure to document you received verbal approval

• Keep confidential papers, reports, computer disks, and data in a secure place

• Retrieve confidential papers from fax machines, copiers, as quickly as possible, especially if the copier and/or fax machine are located in publicly accessible places

• Always tear or shred any unneeded documents, notes, etc. containing patient information

Circumstances of Breach of Confidentiality

•  Most often careless/inadvertent

  • office staff indiscretion

  • elevator chatter

  • discussion in rounds

  • inattention to wording of public release

  • unguarded conversation with patients’ friends/relatives

• Must exercise special care with use of fax, e-mail, other electronic means of transmission of patient health information

  • - confidentiality easily compromised

• Large number of people with potential access to information