W6: Practice Issues: Consent & Advocacy
Consent in Law and Ethics
The Canadian Nurses Association (CNA) Code of Ethics for Registered Nurses requires that nurses respect and promote the autonomy of clients by:
Supporting clients in expressing their values.
Ensuring clients have the right information, guidance, and support to make informed decisions.
Autonomy
Autonomy is meaningful when patients receive full and complete information regarding:
Their medical condition and the risks it poses.
The benefits and drawbacks of the proposed treatment.
The risks, material facts, and alternatives to treatment.
The consequences of non-treatment.
CNO - Code of Conduct
Nurses are required to obtain informed consent from clients, or from their substitute decision-makers when clients cannot do so, as dictated by the CNO’s Consent guidelines and the Health Care Consent Act, 1996.
Informed consent is defined as:
A person's consent is informed if they receive information about a treatment that a reasonable person in the same circumstances would require to make a decision.
Additionally, the person must receive responses to their requests for further information regarding the treatment.
Reference: CNO.(2023). Code of Conduct
CNO - Consent Practice Guideline
Nurses have ethical and legal obligations to obtain consent.
The consent practice guideline includes:
An overview of major features of the legislation relevant to consent.
Definitions pertinent to consent.
Steps nurses should take to obtain consent.
Not addressed under this guideline:
The Mental Health Act
Medical Assistance in Dying (MAID)
Reference: Burkhardt, Nathaniel & Walton (2018), p. 167.
Legislation Regarding Consent
In Ontario, consent-related legislation is encapsulated within:
The Health Care Consent Act (HCCA, 1996)
The Substitute Decisions Act (1992)
These acts delineate:
Requirements for informed consent.
Who is deemed capable of consenting.
Circumstances necessitating a substitute decision maker.
Hierarchy of substitute decision makers.
Health Care Consent Act (HCCA)
Definition: The HCCA is a law intended to regulate the capacity to consent to treatment.
Key stipulation: A person has the right to consent to or refuse treatment if they possess mental capacity.
To establish capacity, one must understand and appreciate the consequences of the treatment decision.
Key goals of the HCCA include:
Promoting individual authority and autonomy.
Facilitating communication between healthcare practitioners and clients.
Ensuring the involvement of family members when the client cannot consent.
Reference: Burkhardt, Nathaniel & Walton (2018), p. 168.
Principles of Informed Consent
Informed consent is entrenched in common law and nursing standards.
The HCCA outlines rules regarding when consent is mandatory.
Consent must be seen as an ongoing process.
The responsibility for assessing capacity lies with the health care practitioner proposing treatment.
Reference: Burkhardt, Nathaniel & Walton (2018), p. 168.
Consent to Treatment
Consent must:
Relate specifically to the proposed treatment.
Be voluntary, reflecting no coercion.
Be informed, encapsulating an understanding of the treatment.
Be obtained without fraud or misrepresentation.
Reference: College of Nurses of Ontario (2017). Consent, p. 5.
Consent to Admission or Personal Assistance
If consent is legally required for admission to a healthcare facility, it is necessary in all cases except for crises.
A substitute decision-maker must receive all pertinent information to determine the best choice for the client.
HCCA stipulates that, if an evaluator determines the recipient of services cannot consent, that consent may be sought from a substitute decision-maker.
Reference: College of Nurses of Ontario (2017). Consent, p. 5.
Types of Consent
There are two primary types of consent:
Expressed (explicit) consent:
A clear statement of consent provided by the patient (either written or vocal).
Implied consent:
Inferred from the patient’s actions (e.g., extending an arm for an injection).
It is critical to note that competent patients may revoke consent at any time.
Implied Consent
Definition: Implied consent does not require written documentation and is common in nursing procedures.
Nurses must provide general information including:
Purpose of treatment
Expected experiences for the client
Intended benefits
Possible risks or negative outcomes
Advantages and disadvantages of alternative treatments (including the possibility of no treatment).
Examples of Implied Consent:
Dressing change.
Client rolling up a sleeve for an injection.
Inserting a nasogastric tube.
Reference: Burkhardt, Nathaniel & Walton (2018), p. 168.
Informed Consent
Definition: Informed consent is when a patient receives necessary information concerning treatment to make a decision comparable to what a reasonable person would require under similar circumstances.
The individual must also receive answers to any inquiries about the treatment.
Reference: Burkhardt, Nathaniel & Walton (2018), p. 169.
Information Required for Informed Consent
Information essential for granting informed consent must encompass:
Nature of the treatment.
Expected benefits of the treatment.
Material risks and side effects associated with the treatment.
Alternative courses of action.
Likely consequences of not undertaking treatment.
Reference: Burkhardt, Nathaniel & Walton (2018), p. 169.
Responsibilities Regarding Informed Consent
Generally, obtaining informed consent for medical and surgical treatments falls under the physician's purview.
According to Potter and Perry et al. (2019), “Informed consent is part of the physician-patient relationship. Because nurses do not perform surgery or direct medical procedures, obtaining patients’ informed consent is not usually one of nurses’ duties” (p. 106).
The nurse does not legally assume the duty of securing informed consent.
Written Consent Requirements
A written form is necessary for all routine treatments, hazardous procedures, and certain other treatments.
Individuals must have legal and mental capacity to make treatment decisions and consent must be given voluntarily and with full awareness of risks and benefits.
Provisions exist for assisting deaf, illiterate, or non-English speaking patients.
Reference: Potter, Perry & Hall (2019), p.106
Elements of Legally Valid Informed Consent
Must be:
A client-based decision.
Signed voluntarily without coercion.
Fully informed regarding the purpose, risks, and benefits.
Verified by the nurse that the client is competent to make decisions.
Known to the client that there are alternative procedures available.
Acknowledged by the client that they have the right to refuse or discontinue care.
Required to have a written consent form signed (and witnessed) if there are risks involved, unless in emergency situations.
Reference: Arnold & Underman Boggs (2016), p. 38.
Consent Form Example
A sample consent form contains sections for:
Patient or Substitute Decision Maker(s) declaration for treatments.
Professional interpreter details.
Witness statements if consent is obtained from someone under disability.
Emergency provisions if consent cannot be obtained in time to prevent serious bodily harm.
Signature lines for all involved parties and dates for record-keeping.
Methods of Obtaining Consent
Consent must be:
Voluntary: Given freely—with no pressure or undue influence.
Informed: The individual must have all the necessary information about the proposed treatment.
Treatment or Provider-specific: Related to specific treatments or procedures from particular providers.
Capacitated: Indicates the individual has the legal capacity, knowledge, and competence to consent.
Reference: Burkhardt, Nathaniel & Walton (2018), p. 169-172.
Free and Informed Consent
Patients have the inherent right to refuse consent for treatment, even if it might be in their best interest.
Nurses are required to advocate for patients who may not be fully informed or who may need more time to deliberate options.
Responsibilities When Consent is Refused
Nurses must understand the law to avoid infringing client rights.
If a client refuses a treatment, the potential harmful effects of non-treatment must be communicated.
Continued refusal should be documented with a written refusal, signed and witnessed; no further procedures or treatment should proceed.
Lack of Consent (Battery)
Battery is classified as an intentional tort, defined as touching another person without consent.
In healthcare, any procedure, surgery, nursing action, diagnostic test, or intervention performed without prior consent is impermissible unless the patient is unable to consent and delaying treatment could result in serious bodily harm or death.
Emergency Consent
In emergencies where consent cannot be obtained from the client or authorized representative, procedures may proceed without liability for failure to obtain consent.
The law assumes the client would desire treatment under such circumstances, often referred to as the EMERGENCY DOCTRINE.
Capacity to Give Consent
A person is deemed capable of granting consent if they:
Understand the relevant information for decision-making.
Appreciate the consequences of their decision or lack of decision.
Individuals unable to provide informed consent may be:
Physically incapacitated.
Mentally unable (e.g., confused).
Lacking in age (common reference to minors).
Reference: College of Nurses of Ontario (2017). Consent, p. 5.
Incompetent Adults
An irrational refusal of consent does not indicate mental incompetence.
If a patient can comprehend the treatment's nature and consequences, they may be considered capable.
If there's concern about competency, a substitute decision maker should be consulted.
Assessing Capacity to Consent
Practitioners must assess a client's capacity to make treatment decisions; the presumption is that clients are capable until there’s reason to believe otherwise.
Decisions about treatment, admission, and personal assistance service are typically presumed capable unless the practitioner has reasonable grounds to suspect otherwise.
Reference: College of Nurses of Ontario (2017). Consent, p. 6.
Substitute Decisions Act (SDA)
The SDA provides two methods for appointing a substitute decision maker for individuals unable to consent:
Power of Attorney for Personal Care: Appointed beforehand.
Court-Appointment of a Guardian: Applies in the absence of appointed Power of Attorney.
Reference: College of Nurses of Ontario (2017). Consent, p. 6.
Hierarchy of Substitute Decision-Makers
A defined hierarchy includes:
Guardian of the person (court-appointed).
Attorney for personal care.
Representative appointed by the Consent and Capacity Board (CCB).
Spouse or partner, followed by children (16+), custodial parents, other relatives.
Public Guardian and Trustee (last resort when higher-ranked substitutes cannot agree).
Reference: College of Nurses of Ontario (2017). Consent, p. 7.
Features of the Substitute Decisions Act
Features include:
Individuals can appoint a specific person for future incapacity.
Only trained assessors may determine capacity under the SDA.
Power of Attorney becomes active upon the grantor's mental incapacity.
Reference: College of Nurses of Ontario (2017). Consent, p. 6 -7.
Role of Substitute Decision-Maker
The expected role involves making choices based on the client's known wishes if they are 16 years or older and capable.
If the wishes are unknown, the decision-maker must act in the client’s best interests, considering:
Values and beliefs of the client.
The effect of treatment on the client’s condition.
Risks versus benefits of treatment options.
Consulting the client’s family, friends, and healthcare professionals when feasible.
Reference: College of Nurses of Ontario (2017). Consent, p. 6-7.
Nursing Implications Regarding Consent
Nurses must always refer to the nursing procedure manual for guidance on protocols.
The individual must have mental capacity to execute a treatment decision and comprehend that for which consent is required.
Consent should be based on thorough disclosure and understanding of all relevant facts as per the Consent Practice Guideline (p. 7-8).
Reference: College of Nurses of Ontario (2017). Consent, p. 7-8.
Process for Obtaining Consent
Flowchart analysis for obtaining client consent or the necessity for substitute decision-maker involvement.
Advanced Directives and Consents
Advanced directives (living wills) typically express specific treatment directives to be followed when a patient can no longer provide informed consent or refusal due to incapacity.
Can be very specific or general.
General Directive Example: “If I have an incurable condition as determined terminal, I wish that life-sustaining measures be withheld.”
Specific Advance Directives: May direct regarding analgesia, hydration, feeding, ventilation, or CPR.
Case Scenario Considerations
Nurses may be asked to witness consent signatures, but are typically not responsible for securing informed consent due to lack of medical training to assess complete understanding.
Nurses can, however, sign as witnesses:
If suspicions arise regarding the client’s understanding of treatment, nurses must alert physicians or nursing supervisors.
Age of Consent in Ontario
In Ontario, individuals, including minors, are presumed capable unless otherwise indicated by the practitioner.
HCCA stipulation: There is no standardized minimum age mandated for consent in medical treatment contexts.
The maturity of a minor may empower them to provide consent on behalf of another.
Surrogate decision-makers may include parents and legally appointed figures such as guardians.
Reference: Burkhardt, Nathaniel & Walton (2018), p. 172.
A. C. Case Scenario Regarding Age of Consent
A fourteen-year-old Jehovah's Witness, known as A.C., received a court-mandated blood transfusion against her and her parents' religious objections in 2006.
The court declared A.C. a child in need of protection after doctors stated her life was at risk.
The Supreme Court ruled to prioritize the child's best interests, mandating future consideration of minor maturity levels in treatment decisions.
The provincial government funded A.C.'s legal expenses, totaling upwards of $450,000.
Tyrell Dueck Case Scenario
Tyrell Dueck, a 13-year-old diagnosed with osteosarcoma, faced parental refusal for traditional treatment paths, leading caregivers to instigate legal processes for guardianship.
The ethical dilemmas involved determining Tyrell's best interests and his capacity to make informed decisions.
Court intervention ultimately granted the Minister authority to consent for Tyrell, who later requested discontinuation of treatment.
Conflict stemmed from undue parental influence and Tyrell's struggle to comprehend treatment implications, resulting in his untimely death after being moved to alternative care.
Role of Nurses as Advocates
The nurse has a vital role as an advocate when clients are deemed incapable of decision-making.
Nurses must communicate to clients that a substitute decision-maker will be involved if they are incapable.
It is essential for nurses to explore and address the discomfort clients may present regarding incapacity findings.
If a client is dissatisfied with findings, nurses can facilitate access to the Consent and Capacity Board for further review.
Reference: College of Nurses of Ontario (2017). Consent, p. 9.
Responsibilities in Advocacy
If signs of client discomfort arise about incapacity decisions, nurses should discuss the matter with the practitioner and seek follow-up.
Using professional judgment, nurses can assess whether clients grasp the treatment details.
Nurses document their advocacy efforts to uphold client rights and the responsibilities associated with their care.
Reference: College of Nurses of Ontario (2017). Consent, p. 9.