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Health Law Blog

Informed Consent: Are Canadian Health Care Professionals Really Getting It?

December 2, 2014

There’s been a lot of talk this past month around the concept of “consent”. While much of the discussion has been sparked by the media’s reporting on the antics of former CBC journalist Jian Ghomeshi and has centered on consent in the bedroom, it behooves Canadian health care professionals to brush up on what consent looks like in their offices as well.

The Ontario College’s that govern Canadian health care providers including physicians, dentists, physiotherapists and other professionals, in accordance with the province’s Health Care Consent Act, lay out clear guidelines as to what constitutes informed consent. What appears to be less clear is the professionals’ interpretation of the difference between consent and informed consent. Failing to properly understand the difference can all too easily give rise to liability.

Imagine a situation where a patient in pain presents with a herniated disc and their doctor tells them they need an operation. “Will that solve my problem?” the patient asks. The doctor assures them the odds are good that it will and the patient agrees to proceed. While the patient has indeed given their consent, if the physician did not also inform them the procedure carries a risk of stroke and other maladies, that patient has not given their informed consent.  If there is ultimately a worse-case-scenario outcome and the patient in this story suffers a stroke, they would be within their legal rights to sue the physician who did not obtain informed consent.

In order for health care professionals to demonstrate that they have received informed consent, the following five criteria must be met:

  1. The patient must be informed of material risks and potential disabilities that can result from the procedure.
  2. The patient must be given an opportunity to ask questions.
  3. The patient must have their questions answered.
  4. The patient must be advised of all alternatives available.
  5. The patient must be given the option or informed of the consequences of no treatment at all.

In addition to the above, the conversation between health provider and patient must also be properly documented, noting that the discussion took place, what was said, and what questions were asked by the patient. While this may add an extra burden to an already busy practice, it may also be the only thing protecting you if there is ever a legal challenge.

But wait, there’s more.

Under the terms laid out in the Health Care Consent Act, a health care professional cannot obtain informed consent unless they are entirely confident that a patient is capable of providing it and it is here that the most errors in judgement typically are made. For example, while physicians understand it’s a given that adults can provide their informed consent, they may not be aware that so too can a “mature minor”. What exactly is a mature minor? That depends. While the general consensus seems to be that anyone 16 years of age and over is considered a mature minor, that isn’t true. It’s a matter of judgement. So, while an immature 17 year-old may not fit the definition of a mature minor, a precocious 14 year-old might.

Equally important is determining if a patient has the mental capacity to give consent. An elderly patient, for example, who appears confused or is exhibiting signs of dementia may not be capable of providing informed consent. If a health care provider is ever unsure, it’s in their best interest not to proceed until the individual can be assessed by a mental health professional.

Testimonials

Ms. Tremayne-Lloyd was the keynote speaker at the Medical Staff Association 2011 meeting on June 20, 2011. Her presentation was titled: “Hospital Governance: An Indispensable Joint Venture of Medicine and Management and Rights and Responsibilities of the Medical Staff”. The presentation was well received by the Medical Staff and the topic was certainly relevant. We would recommend her and have her back for any further topics.

Hien Ta, M.D., FRCPC Past Medical Staff President, York Central Hospital

Tracey Tremayne-Lloyd Health Law