consent & capacity
Page 1: Title Page
Consent & Capacity to Consent
Course: OCCU 5003: Dimensions of Professional Practice
Author: Crystal Dieleman 2024
Institution: Dalhousie University
Page 2: Outline
Valid consent and assent
Principle of the mature minor
Capacity to consent
Substitute decision makers
Page 3: Autonomy & Self Determination
Every adult has the right to decide what happens to their own body (Reibl v. Hughes, SCC 1980).
Touching without consent constitutes a battery in both criminal and civil law.
Right to refuse health treatment is a key aspect of autonomy.
Individuals have the right to make unwise choices.
Consent is an ongoing process and can be withdrawn at any time.
Page 4: Responsibilities of Occupational Therapist
Must obtain valid consent for assessments and interventions.
Assist in assessing legal capacity across various contexts (e.g., personal care, residence choices, adult protection).
Page 5: Types of Consent
Implied Consent
Derived from actions or conduct (e.g., nodding, attending appointments).
Limited understanding confirmation; specific actions and timeframe only.
Expressed Consent
Can be verbal or written communication of consent.
Offers a greater ability to confirm understanding of extensive actions over time.
Page 6: Valid Consent Criteria
Must be:
Informed
Voluntary
Capable
Page 7: Informed Consent
Requires disclosure of:
Proposed intervention and alternatives
Material risks relevant to the client’s perspective.
High probability risks and low probability/high impact risks.
Confirm client understanding throughout the process.
Page 8: Voluntary Consent
Consent must be free of coercion, threat, or ambiguity.
Clients must have the ability to withdraw consent at any time.
Page 9: Capacity to Consent
Distinction between decision-making incapacity and mental health diagnoses.
Biases must be recognized; diagnosis does not imply lack of insight.
Capacities are decision-specific and time-sensitive.
Disagreements with professionals do not equate to incapacity.
Page 10: Presumption of Capacity
Presumed under statutes like the Hospitals Act:
Adults in hospitals or psychiatric facilities presumed capable of treatment decisions.
Burden of proof on healthcare professionals to demonstrate incapacity.
Page 11: Incapacity in Nova Scotia
Hospitals Act:
Assesses treatment capacity by physicians in consultation with HCPs.
Personal Directives Act:
Assesses personal care capacity, possibly by HCPs or physicians.
Involuntary Psychiatric Treatment Act:
Diagnosed by psychiatrists for treatment incapacity related to involuntary hospitalization.
Page 12: Additional Capacity Assessments
Adult Protection Act: Focuses on abuse/neglect and decision-making incapacity.
Adult Capacity and Decision-Making Act: Defines capacity as understanding information and foreseeing consequences.
Powers of Attorney Act: Legally incapacitated individuals regarding estate management are assessed by lawyers and HCPs.
Page 13: Legal Framing of Decision-Making Capacity
Capacity involves understanding and appreciating the consequences of decisions.
Understanding: Cognitive ability to process relevant information.
Appreciation: Ability to weigh risks and benefits of a decision (Starson v. Swayze, SCC 2003).
Page 14: Conditions of Assessment
Evaluators must avoid imposing their values or preferences.
Inability to understand/appreciate does not always indicate a lack of ability.
Sufficient information must be provided, ensuring temporary conditions don’t impede capacity.
Page 15: Starson Case Overview
Involuntary hospitalization due to threats; diagnosed with schizo-affective disorder.
Rejected treatment proposals due to denial of illness and past side effects.
Page 16: Starson Case - Majority Opinion
Patients aren't required to label their conditions negatively.
If patients fail to recognize their condition, it impacts their appreciation of consequences.
Page 17: Inquiry into Reasons for Non-Appreciation
Important for evaluators to determine reasons behind appreciation failures.
Must differentiate between inability and external circumstances (e.g., lack of information).
Page 18: Substitute Decision-Makers
Qualifying criteria:
Must be capable and willing, with prior personal contact in the last year.
Decisions should reflect the client’s wishes or best interests in absence of such wishes.
Page 19: Statutory List of Substitute Decision-Makers
Includes:
Spouse/common-law partner
Adult child, parent, or guardian
Siblings, grandparents, grandchildren, aunts/uncles, and other family members
Public Trustee
Page 20: Consent vs. Assent
Consent: Legal right to agree or refuse health care.
Assent: Agreement from someone unable to legally consent, dependent on legal consent from a substitute decision-maker.
Page 21: Principle of the Mature Minor
Parents typically decide for their children, but the mature minor rule allows capable minors to consent.
Some provinces specify ages for presumed capability, but this can be contested.
Page 22: Case Example - James
James diagnosed with schizophrenia; has consented to therapy but wants changes to the plan (e.g., preferring music events).
Parent’s input in decision-making; their view may conflict with James’ desires.
Page 23: Discussion Points for James
Evaluating elements of valid consent.
Questions on James' capacity regarding the consent to the therapeutic plan.
Role of James’ mother in decision-making.
Page 24: Case Example - Bob
Assessment of Bob, a client showing signs of dementia, who is unresponsive during interaction.
Bob’s ability to participate in assessments questioned based on his responses.
Page 25: Discussion Points for Bob
Considerations around elements of valid consent.
Any concerns regarding Bob's capacity for consent?
Recommendations to nurses based on observations.
Page 26: Next Class Preview
Topics:
Confidentiality
Information sharing
Duty to report