Consent to Treatment

Definitions

Treatment: Anything that is done for a therapeutic, preventative, palliative, diagnostic, cosmetic, or other health-related purpose, and includes a course of treatment, plan of treatment, or community treatment plan. It does not include, among other things, a capacity assessment, health history-taking, assessment or examination of a patient to determine the general nature of their condition, communication of an assessment or diagnosis, admission to a hospital or other facility, personal assistance service, or treatment that poses little or no risk of harm to the person.¹

Capacity: A person is capable with respect to a treatment if they are able to understand the information that is relevant to making a decision and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. Capacity to consent to a treatment can change over time and a patient can be capable with respect to some treatments and incapable with respect to others.

Substitute decision-maker (SDM): A person who may give or refuse consent to a treatment on behalf of a patient who is incapable with respect to treatment. 

Express consent: Agreement that is direct and explicit. Express consent can be given orally or in writing.

Implied consent: Agreement that is understood from the words or behaviour of the patient or the circumstances under which the treatment is given.

Informed consent: Express or implied consent that is provided by a patient after understanding the information provided and having the opportunity to ask questions about the nature of the treatment, its expected benefits, its material risks relevant to their specific circumstances that a reasonable person would want to know, alternative courses of action, and the likely consequences of not having the treatment. 

Valid Consent: Consent that meets all the requirements of the Health Care Consent Act, 1996 (HCCA). This includes that the consent be informed, be provided by a capable patient or SDM, and be given voluntarily and not under duress.²

Policy

This policy sets out expectations of physicians in obtaining and documenting consent to treatment, in addition to meeting the requirements of the HCCA. Further information about the HCCA’s requirements is set out in the Guide to the Health Care Consent Act companion document. 

Obtaining Consent

1. Physicians must comply with all of the requirements in the HCCA, including obtaining valid consent³ before treatment is provided.
   1. While consent can generally be either express or implied, physicians must obtain express consent in situations where the examination or treatment is:
      • an intimate examination⁴;
      • carries appreciable risk; 
      • is a surgical procedure or an invasive investigative procedure; or,
      • will lead to significant changes in consciousness.
   2. A physician proposing treatment may request another health-care provider obtain consent from the patient, but they must be assured that the health-care provider has the knowledge, skill, and judgment required to obtain consent. The physicians involved in the treatment are ultimately responsible for the consent being obtained.
2. Physicians must engage in a dialogue with the patient or the SDM and answer any questions they may have about the treatment prior to obtaining consent to ensure that the patient’s consent is informed.
3. If physicians believe that consent is not being freely given, they must take reasonable steps to ensure that there has been no coercion and that the patient is not under duress.
4. Physicians must consider and address language and communication issues that may impede a patient’s ability to give valid consent.
   1. Physicians must use their professional judgment to determine whether it is appropriate to use a patient’s family members or friends as interpreters and only do so where it is in the patient’s best interests.

   Incapable Patients and Substitute Decision-Making

   Treatment can only be provided where the patient is capable with respect to the treatment and has given consent, or, where the patient is incapable, the SDM has given consent on the patient’s behalf.⁵

   5. Where a patient is incapable with respect to a treatment, physicians must, where possible, inform the incapable patient that an SDM will assist them in understanding the proposed treatment and will be responsible for the final decision.
      1. Where a patient disagrees with the finding of incapacity, physicians must advise them that they can apply to the Consent and Capacity Board (CCB) for a review of the finding.
      2. Where a patient disagrees with the involvement of the designated SDM, physicians must advise them that they can apply to the CCB to appoint an SDM of their choice.
      3. When appropriate, physicians must involve the incapable patient, to the extent possible, in discussions with the SDM.

      Documenting Consent

      6. Physicians must comply with all relevant legislation related to medical record-keeping⁶ and the expectations set out in CPSO’s Medical Records Documentation policy.
      7. Physicians must document information in the patient’s medical record about consent to treatment where the examination or treatment: 
         • carries appreciable risk; 
         • is a surgical procedure or an invasive investigative procedure; or,
         • will lead to significant changes in consciousness.