consent and substitute decision making

bases of consent

ethical, professional, legal

ethical basis

autonomy principle asserts that a capable individual is free to determine and act in accordance with self-chosen plan. supports need for practitioners to gain consent of patients before starting treatment or care

professional basis

health professions have code of ethics and standards that pertain to informed consent and ability to make an informed decision

CNA code of ethics guiding principle 1.2

nurses promote the autonomy and self-determination rights of all people

Code of ethics 1.2.2

ensuring nursing care is provided with person’s voluntary informed consent

code of ethics 1.2.3

providing clients with information and education they need to make informed and autonomous decisions related to their health and well-being

code of ethics 1.2.5

supporting a capable person’s ongoing right to refuse or withdraw consent for assessment, care, or treatment

Code of ethics guiding principle 1.1

nurses respect the inherent dignity and autonomy of all

code of ethics 1.1.1

supporting the autonomy of all people to address their own needs to promote the highest level of health and well-being

code of ethics 1.1.5

supporting individuals, groups, and communities in maintaining their dignity and integrity

CNA Code of ethics guiding principle 1.3

nurses respect clients preferences and choices through compassionate and ethical conduct

code of ethics 1.3.6

respecting the decisions of all people, including choice of lifestyle or treatment that may not be perceived as conducive to health or well-being while continuing to provide care in a non-judgmental manner

criminal law basis

criminal code of Canada makes it an offence when someone commits assault under 265(1)(a) OR 267(a)

criminal code of canada 265(1)(a)

without the consent of another person, applies force intentionally to that other person, directly or indirectly (assault - 5 years)

criminal code of canada 267(a)

uses a weapon or causes bodily harm to the complainant (assault with a weapon or causing bodily harm - 10 years)

civil law basis

treatment without consent is wrong under tort law and victims can sue to receive compensation for any injuries they sufferes

treatment without proper consent is…

negligence

human rights basis

under canadian charter of rights and freedoms everyone has the right to life, liberty, and security of the person

common law basis

canadian case law supports the ethical and professional basis of need for consent.

statute law basis

provincial legislation, health care (consent) and care facility (admissions) act

Health care and care facility act 5(1)

a health care provider must provide any health care to an adult without the adult’s consent

treatment without consent can lead to…

• criminal charge of assault

• civil suit to compensate for damages that result

• professional misconduct

• loss of trust, breakdown of therapeutic relationship between the healthcare provider and client

3 components of consent

capacity, voluntariness, information

consent must be specific to…

the treatment proposed and should be obtained by practitioner who will be doing the intervention

capacity

the adult must be capable of making a decision about whether to give or refuse consent to healthcare. adult is presumed to have capacity

capacity test

does the patient have ability to understand the nature, purpose, and effect of the proposed treatment and have the ability to weigh the potential risks and benefits associated with it

what type of concept is capacity?

fluid and may change over time

capacity and mental impairment

even where a patient has an impaired mental status. he/she may still be able to consent to a proposed treatment

capacity and mental illness

just because a person has a mental illness does not necessarily mean that he/she lacks decision-making capacity. may lack treatment decision making

voluntary consent

consent gained without coercion, undue influence, misrepresentation

factors affecting person’s decision making

• financial implications of treatment

• impact o family members

• fear of potential outcomes

• level of trust in healthcare provider

• responsibility to others

consent must be specific to…

treatment and the provider

misrepresentation will…

invalidate the consent

misrepresentation

where a healthcare provider deliberately misleads the patient as to the nature of the treatment, consent is invalid

who should obtain consent?

the person carrying out the treatment

informed consent reflects…

a change in the patient/HCP relationship from one of paternalism to one where patient is a partner in decision-making process

informed consent

the patients right to self-determination cannot really be properly exercised unless he or she has enough information to make such a choice

failure to inform

if you owe a duty of care to the patient, and you breach the expected standard of care by not providing the appropriate information, and the patient suffers damages as a result, that would be considered negligence

risk

part of what must be disclosed is an explanation of the risks involved in a particular treatment

2 types of disclosure standards

professional disclosure standard, full disclosure standard

professional disclosure standard

requires the court to decide what the reasonable practitioner, mindful of the duty of disclosure, would have told a patient in circumstances similar to those of this patient

full disclosure standard

practitioner must disclose sufficient information that, in light of what he/she knows or ought to know about the patient’s personal circumstance, will enable the reasonable patient in those circumstances to make an informed decision

does full disclosure mean every risk?

no! not every risk needs to be disclosed but the degree of disclosure must be tailored by the practitioner to suit this particular, individual patient

general non-disclosure

there are some common, everyday risks that exist in certain procedures which people are generally expected to know about as a matter of “common sense”

risks of non-disclosure

threat to patient autonomy, may invalidate consent to treatment

right to refuse

a patient should not just have a choice between two or more treatment options, but should also be made aware of their right to refuse treatment

right to refuse exists…

notwithstanding that the reasons for making the choice are rational, irrational, unknown or even non-existent. even if the refusal will result in death

emergency treatment

where a patient is severely injured and unable to consent to life-saving treatment as a result, the privilege of emergency doctrine comes into effect

emergency treatment may be administered…

without consent where it is urgent and necessary to preserve life

consent may given…

orally or in writing

does consent need to be written?

no legal obligation to obtain a written consent

is a consent form valid?

it is one piece of evidence of consent and is not, in and of itself, a valid consent

consent is considered a…

process. patient may withdraw consent at any point, regardless of what has been previously agreed upon or documented

suggest that written consent is obtained especially when…

particularly invasive, will have long-term consequences, where risks are significant

express consent

where pateint explicitly authorizes proposed treatment, examination or intervention

examples express consent

• patient may expressly request a treatment or intervention

• patient may expressly agree to a treatment or intervention proposed by the health care professional

implied consent

where a patients conduct indicates a willingness to submit to treatment, not acceptable for complex treatment

examples of implied consent

• patient presenting arm for injection

• patient presenting himself to the lab with a request form for blood tests

substitute decision maker

an individual who acts on behalf of the adult when the adult is not capable

categories of SDM

committee of the person, representative, temporary substitute decision maker, public guardian and trustee

committee of the person

SDM appointed by the court, can make all the healthcare decisions

representation agreement act

allows an individual to nominate their own SDM

representation agreement standard powers

minor and major health care, personal care, legal affairs, very routine financial

representation agreement broader powers

minor and major health care, personal care, refusal of life-saving measures, consent to less common medical procedures. does not apply to financial or legal affairs

temporary substitute decision-maker

the HCCA lists, in hierarchical order, those individuals who may be called upon to be the SDM

TSDM must meet all these criteria…

• be an adult

• have had contact during preceding 12 months

• have no dispute with adult

• be capable of giving, refusing or revoking substitute consent

• be willing to comply with duties listed in section 19

if no one is available or qualified…

the health care provider must contact the office of the PGT

if the incapable adult’s instructions or wishes are not known…

the TSDM must decide to give or refuse consent in the incapable adult’s best interests

SDM for health maters order of authority

committee of the person, representative via a valid RA, TSDM, PGT

committee of person in a nutshell

appointed by court

representative via a valid RA in a nutshell

appointed by adult while still capable

TSDM in a nutshell

uses HCCA hierarchy

PGT in a nutshell

DM of last resort

treatment of a minor without parental consent may constitute…

battery

gradual maturity

as children develop and mature, legal obligations of parents gradually decrease as the rights and responsibilities of the child correspondingly gradually increase

maturity categories

infants, immature minors, mature minors

infants

minors up to the age of 6 and incapable of understanding relationship between illness and treatment

decisions for infants made by…

parents in consultation with healthcare practitioners

immature minors

children older than 6. presumed to have sufficient capacity to understand basc notions of illness and healthcare

immature minor will…

be able to have some input into treatment decisions, although unable to give consent to treatment

mature minors

has the capacity to understand the nature and purpose, as well as the consequences of medical treatment

presumption of incapacity to consent may be made when..

a child in younger than 13 years old

infant’s act

codifies the common law position

minor may give effective consent when…

the infant understands the nature and consequences and the reasonably foreseeable benefits and risks of the healthcare, the health care is in the infant’s best interests