Advice to the Profession: Consent to Treatment

The College’s Consent to Treatment policy and Guide to the Health Care Consent Act companion document set out physicians’ professional and legal obligations with respect to obtaining consent to treatment. This Advice to the Profession: Consent to Treatment document is intended to help physicians interpret these obligations and provide guidance around how they may be effectively discharged.

Obtaining Consent

What is the difference between implied consent, express consent, and written consent?

As stated in the policy, implied consent is understood from the words or behaviour of the patient or the circumstances (e.g., holding out an arm to have a wound sutured), whereas express consent is direct and explicit. Written consent is a form of express consent (express consent can also be given orally).

Do I have to obtain consent to withdraw a life-sustaining treatment?

Yes. The Decision-Making for End-of-Life Care policy provides guidance about withdrawing treatment in end-of-life scenarios. Physicians can consult the Canadian Medical Protective Association or legal counsel to ensure they have complied with their legal obligations regarding consent in these situations. 

What should I consider in determining whether it is appropriate to use a patient’s family members or friends as interpreters? 

In many cases, using a patient’s family members or friends as interpreters could be the most accessible, convenient, practical, and comfortable option for patients. At the same time, using family members or friends as interpreters can present challenges, such as language limitations, difficulty understanding medical terms, inter-family dynamics and conflict, or important information being deliberately or accidentally omitted. As a result, particularly for higher risk or complex treatment plans, physicians can consider a formal or third-party interpretation service, where available. 

You must also have consent to share the patient’s personal health information with any interpreter, regardless of whether the interpreter is a family member or a third party.¹  

What should I consider when using technology to assist in interpretation for patients?

Technology (e.g., Google Translate) may help physicians to translate for patients in some cases, particularly where no other reliable method of interpretation is available. However, use of technology may come with the risk of inaccurate translation or a privacy breach and physicians need to consider any potential accuracy and privacy issues before using such technology. Even when using technology, physicians are ultimately responsible for ensuring that patients have provided informed, valid consent to treatment. 

What do I do if a patient wants a family member or friend to consent on their behalf or if they want to provide consent without hearing about the risks of the treatment?

A patient may ask that you obtain consent from a family member or friend, even where they are capable. In other cases, the patient may feel anxious about the proposed treatment and want to provide consent without hearing about the risks. 

However, a capable patient cannot ask someone else to provide consent on their behalf. The law requires that consent be obtained by a capable patient directly or, where they are incapable, the SDM. It also requires that consent be informed. As such, you are required to provide information about the nature of the treatment, its expected benefits, its material risks and material side effects, alternative courses of action, and the likely consequences of not having the treatment. If a patient refuses to hear this information, their decision will not be informed and their consent will not be valid.

You may want to sensitively explain this requirement to the patient and emphasize the importance of understanding the risks. You may also want to give patients time to process the information, gather family or friends if they need additional support, and try to arrange for an opportunity to continue the dialogue at a later date if time permits. 

Can a patient’s family members or friends be involved in the consent discussion? 

Yes, it is appropriate and often helpful to involve others in the consent discussion, provided you have the patient’s consent to share their personal health information and the patient makes the final decision regarding treatment. Minors capable of consenting to treatment can also choose whether they wish to have their parents or others involved in discussions about their care or treatment. 

It may be helpful to ask at the beginning of the patient encounter how the patient prefers to hear information about their condition (e.g., prognosis), and who they want to be present with them while they receive the information. 

Does a signed consent form constitute informed consent? 

Not necessarily. The requirement for informed consent will not be met where the patient simply signs a consent form or receives written education materials or pamphlets without an informed consent discussion. This includes a discussion of the nature of the treatment, the expected benefits and material risks, alternative courses, of action and likely consequences of not having treatment, in addition to the patient having an opportunity to ask any questions they may have. 

It is important to consider the patient’s particular circumstances when determining whether a risk is material. The information to be discussed needs to be determined on a case-by-case basis so that it relates to the specific patient and is neither over- or under-inclusive.

What steps can I take to help my patients understand the information being provided when obtaining consent? 

You may want to be mindful of the factors that can limit patient comprehension, as well as the tools that can help support comprehension. Some of these include:

• Using language appropriate for the patient’s comprehension of concepts like probability and medical terminology. 
• Considering the impact of pain, mental illness, and biases when communicating information.

Other tools can be found in the CMPA document “Helping patients make informed decisions.”

Patients or substitute decision-makers (SDMs) may need time to review and understand any information you provide prior to giving or refusing consent to a treatment. Consider “pacing” the information you provide so that the patient or SDM has an opportunity to reflect on it and any questions they wish to ask.  

In order to obtain informed consent, I need to provide certain information, including the “material risks” associated with the treatment. What are “material” risks, and which risks do I have to disclose?

Courts have defined a “material” risk as a risk about which a reasonable person in the same circumstances as the patient would want to know in order to make a decision about the treatment. This includes but is not limited to risks that the physician believes may lead the patient to refuse or withhold consent to treatment.

The material risks that need to be disclosed are risks that are common and significant, even though not necessarily grave, and those that are rare, but particularly significant. Generally speaking, the more frequent the risk, the greater the obligation to inform the patient about it. In addition, risks of great potential seriousness, such as paralysis or death, need to be disclosed even if uncommon.

Determining Capacity

Are minors capable of consenting to treatment?

Minors are sometimes capable of consenting to treatment. In Ontario, there is no minimum age for capacity to consent to treatment. The HCCA says that all people are presumed capable of consenting to treatment, which also applies to minors. Physicians can use their professional judgment to consider whether there are reasonable grounds to believe that a minor is incapable, as they would for any other patient.²

Can I assume that once a patient is considered capable with respect to a treatment, they will always be capable regarding that treatment or will be capable for all other treatment decisions?

No. Capacity is fluid; it can change over time and is treatment-specific, meaning it could depend on the nature and complexity of the specific treatment decision. 

For this reason, consent may need to be revisited after it has been obtained in case there are any significant changes in the patient (e.g., their health status, health-care needs, specific circumstances, capacity, etc.) or treatment (e.g., the nature, expected benefits, material risks and material side effects, etc.). The passage of time may also increase the risk that these changes will arise and that consent may need to be obtained again. 

It may be appropriate to involve the future SDM(s) in ongoing consent discussions, with the patient’s permission, so that if the patient does lose capacity and the SDM is required to start making treatment decisions, those decisions can be made in accordance with the patient’s stated wishes and/or best interests.

My patient is refusing to consent to a treatment that I think they should have. Does this mean they are incapable?

Not necessarily. Patients have the legal right to refuse or withhold consent. Patients may sometimes make decisions that are contrary to the physician’s treatment advice, and you cannot automatically assume in these cases that they are incapable of making that decision.

In some cases, however, a patient’s decision may cause you to question whether the patient has the capacity to make the decision (e.g., they understand the information relevant to the decision and the consequences of not proceeding with the treatment). Where this is the case, you may want to consider doing a more thorough investigation of the patient’s capacity to confirm the patient’s decision is informed and valid. This could start with questions about their reasons for refusing treatment and/or the information they are relying on in making their decision. 

It is important to remember that it is inappropriate for a physician to end the physician-patient relationship solely because the patient chooses not to follow the physician’s treatment advice (for more information, see the CPSO’s Ending the Physician-Patient Relationship policy).

Incapable Patients and Substitute Decision-Makers

Where a patient expresses a desire to apply to the Consent and Capacity Board (CCB) for review of a decision involving capacity or the identity of the SDM, you can provide the contact information for the Law Society of Ontario’s Referral Service.

What do I do if the patient is incapable and I cannot contact an SDM?

The HCCA provides exceptions to consent requirements for emergencies.³  In all other cases, consent must be provided by an SDM identified by the hierarchy set out in the HCCA⁴ prior to providing treatment. If there is no SDM that meets the requirements, the Public Guardian and Trustee (PGT) will make the decision.

Physicians may wish to consult with legal counsel and/or the Canadian Medical Protective Association if they have questions about what to do when they cannot contact an SDM. 

What do I do if the SDMs disagree on whether to give or refuse consent?

Because the HCCA permits two or more people within the same rank to jointly act as an SDM, you may encounter a situation where equally ranking SDMs disagree about whether to give or refuse consent. 

Although the patient may not be capable of making treatment decisions, the patient may be capable of choosing an SDM by creating or updating their Power of Attorney for Personal Care. Alternatively, one of the SDMs or another person may apply to the CCB for the right to make the decision as the patient’s representative.  

Ultimately, if two equally ranking SDMs disagree, the Public Guardian and Trustee (PGT) will make the decision as a last resort. More information about how to involve the PGT may be obtained from the Treatment Decisions Unit. Physicians may want to consult legal counsel if they have questions. 

How can a patient communicate their wishes to the SDM?

The SDM is required to give or refuse consent in accordance with the wishes of the patient, provided the patient was, at the time the wishes were expressed, capable and 16 years or older.

Wishes can be expressed in writing, orally, or in any other manner. Written wishes may involve advance care planning documents, commonly known as an ‘advance directive’ in a power of attorney, or some other form. For more information about advance care planning, see the CPSO’s Decision-Making for End-of-Life Care policy.

Later wishes expressed while capable, whether written, oral, or any other manner, prevail over earlier wishes.

I have a legal obligation to ensure that SDMs understand the requirements for giving or refusing consent as set out in the HCCA. What steps can I take to fulfill this obligation?

First, you need to determine how familiar the SDM is with the HCCA requirements. Some SDMs may not know what the HCCA requirements are, so you may need to tell them. You may want to consider referring SDMs to existing substitute decision-making resources that outline the requirements, such as the Hamilton Health Sciences’ Making Decisions for Others: Your Role as a Substitute Decision Maker education document.

Other SDMs may be very familiar with the requirements, as they may have had to give or refuse consent on behalf of an incapable patient before. In these circumstances, you may not need to tell SDMs what the requirements are. Instead, you need to be satisfied that the SDM understands what the HCCA requirements are when you are obtaining consent to a treatment from an SDM.

What if I am concerned that the SDM is not acting in accordance with the patient’s wishes or best interests?

If you believe that the SDM is not acting in accordance with the patient’s wishes⁵ or best interests, you can apply to the CCB to determine how to proceed. 

What is the role of the Consent and Capacity Board? How do I find more information?

The CCB is an expert tribunal comprised of lawyers, psychiatrists, and members of the public. The CCB can convene hearings quickly. Among many other things, the CCB has authority to review findings of capacity to make treatment decisions and authorize the appointment of a representative to make treatment decisions on behalf of an incapable patient. The CCB can also provide direction when a physician believes an SDM is not complying with their obligations,⁶ or if clarity about a patient’s wishes is needed. They can also grant permission to depart from prior wishes in very limited circumstances.

The CCB’s website has information regarding their services. Physicians can contact the CCB directly or seek assistance from legal counsel at their institution, if applicable, or from the Canadian Medical Protective Association.

For more information about this process, see the CCB website or the Ontario Hospital Association’s A Practical Guide to Mental Health and the Law in Ontario.

Documentation

What do I need to consider when documenting consent discussions? 

Proper documentation can help physicians demonstrate that valid consent was obtained if an issue arises after treatment. Therefore, while the policy only requires physicians to document consent discussions in specific circumstances, it is a best practice to document consent discussions in all circumstances.⁷

You need to use your professional judgment when documenting the encounter and include enough information to provide an accurate summary of your discussion with your patient. 

You are expected to capture any written consent (e.g. a signed consent form) in the patient’s medical record.⁸