Guide to the Health Care Consent Act

General Principles for Obtaining Valid, Informed Consent

The Health Care Consent Act (HCCA) requires physicians to obtain valid, informed consent before providing treatment. 

Before treatment is administered, physicians must believe the patient is capable with respect to treatment and has given consent.  

If the physician believes that the patient is not capable of making decisions about their treatment, then the consent must be obtained from the Substitute Decision Maker (SDM).¹ 

Patients and SDMs have the legal right to refuse, withhold, or withdraw consent to a treatment, and physicians must respect this decision even if they do not agree with it.²

Elements of Valid Consent

Consent is valid when:

• It relates to the proposed treatment; 
• It is informed;
• It is given voluntarily; and,
• It was not obtained through misrepresentation or fraud. 

Identifying Informed Consent

Consent is informed when a physician:

• Has provided information about the nature of the treatment, its expected benefits, material risks and side effects, alternative courses of action, and the likely consequences of not having the treatment;
• Has responded to requests for additional information; and,
• Is satisfied that the patient or their SDM understood the information provided, which includes taking reasonable steps to facilitate that understanding. 

The information provided to the patient or their SDM must include information that a reasonable person in the same circumstances would require in order to make a treatment decision. This must include information about material risks that are relevant for both a broad range of patients and the specific patient. 

Scope of Valid, Informed Consent

Unless the circumstances make it unreasonable to do so, physicians are entitled to presume that consent to treatment includes:

• consent to variations or adjustments in the treatment when the nature, expected benefits, and material risks and side effects are not significantly different than the original treatment; and
• consent to the same treatment’s continuation in a different setting, if the change in setting will not significantly change the expected benefits or material risks or side effects of the treatment.

Capacity, Incapacity, and Minors  

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 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 treatment decisions and incapable for others. Therefore, physicians must consider the patient’s capacity at various points in time and in relation to the specific treatment being proposed.

A person is presumed to be capable with respect to treatment unless there are reasonable grounds to believe otherwise (e.g., something in a patient’s history or behaviour raises questions about their capacity to consent to the treatment). 

Minors and Capacity

In Ontario, the presumption of capacity applies to everyone, including minors. If a minor is capable with respect to a treatment, the physician must obtain consent from the minor directly, even if the minor is accompanied by their parent or guardian.

Identifying the Substitute Decision-Maker

The HCCA sets out a hierarchy of the individuals and agencies who may give or refuse consent on behalf of an incapable patient as follows: 

Using the Hierarchy

Where a patient is incapable with respect to treatment, physicians must obtain consent from the SDM identified by the hierarchy. The SDM is the highest-ranking person in the hierarchy set out in the HCCA who is also:

• capable with respect to the treatment (the test for capacity applies equally to both patients and SDMs);
• at least 16 years old, unless they are the incapable person’s parent;
• not prohibited by a court order or separation agreement from having access to the incapable patient or from giving or refusing consent on their behalf;
• available to communicate consent or refuse consent within a time that is reasonable in the circumstances; and
• willing to assume the responsibility of giving or refusing consent. 

If a higher-ranking person in the hierarchy does not satisfy the requirements

If a higher-ranking person in the hierarchy does not satisfy all of the requirements for substitute decision-making under the HCCA, physicians must move to the next-highest person in the hierarchy who meets the requirements.

Once an SDM is Identified

Once an SDM is identified, the HCCA requires that they give or refuse consent in accordance with the most recent and known wish expressed by the patient while they were capable and at least 16 years old. 

If no valid wish is known or the wish is impossible to comply with, the SDM must act in the patient’s best interests. 

Physicians are responsible for taking reasonable steps to ensure that SDMs understand these requirements.

Determining an Incapable Patient’s Best Interests 

To determine the incapable patient’s best interests, the SDM must consider:

• any values and beliefs the patient held while capable that the SDM believes they would still act on if capable;
• any wishes the patient expressed that the SDM is not legally required to follow (e.g., because the wish was expressed when the patient was not capable or was under the age of 16); and 
• the following factors:
  • whether the treatment is likely to:
    • improve the incapable patient’s condition or well-being;
    • prevent their condition or well-being from deteriorating; or,
    • reduce the extent or rate of their condition or well-being’s deterioration; 
  • whether, without the treatment, the incapable person’s well-being is likely to improve, remain the same, or deteriorate;
  • whether the expected benefit of the treatment outweighs the risk of harm; and,
  • whether a less restrictive or less intrusive treatment would be as beneficial.

Emergency Treatment

Under the HCCA, an emergency is a situation where the patient is apparently experiencing severe suffering or is at risk of sustaining serious bodily harm if the treatment is not administered promptly.

In emergencies, physicians must obtain consent from a patient who is apparently capable with respect to the treatment unless, in the opinion of the physician, all the following are true:

• the communication required to obtain consent cannot take place because of a language barrier or a patient’s disability;
• reasonable steps in the circumstances have been taken to find a practical means of enabling communication but were not successful;
• the delay required to find a practical means of communication will prolong the patient’s apparent suffering or put them at risk of sustaining serious bodily harm; and,
• there is no reason to believe that the patient does not want the treatment. 

If a Patient Previously Wished to Refuse Consent to the Treatment

Physicians must not provide treatment in emergencies if they have reasonable grounds to believe that the patient, while capable and at least 16 years of age, expressed a wish to refuse consent to the treatment that would be applicable in the circumstances.

Contacting SDMs in Emergencies

In an emergency where the patient is incapable with respect to the treatment, physicians must obtain consent from the incapable patient’s SDM unless, in the opinion of the physician, the delay required to establish consent or refusal:

• will prolong the suffering that the patient is apparently experiencing; or,
• will put the patient at risk of sustaining serious bodily harm.

If an SDM Refuses to Consent to a Treatment in an Emergency

Where an SDM refuses to consent to a treatment in an emergency, the physician must respect this decision unless, in the physician’s opinion, the SDM has not complied with the substitute decision-making requirements outlined in section 21 of the HCCA. 

If the SDM has not complied with the HCCA requirements, the treatment may be administered despite the refusal.

If a Patient Becomes Capable During an Emergency

If, in the opinion of the physician, the patient becomes capable with respect to the treatment during emergency treatment, the physician must seek the patient’s consent. The capable patient’s decision to give or refuse consent to the continuation of the treatment supersedes the SDM or physician’s decision.

After Administering Emergency Treatment Without Consent

After administering treatment in an emergency without consent, the physician must promptly note in the patient’s record the physician’s opinions at the time of treatment that they relied on in administering the emergency treatment under the HCCA. 

Duration of Emergency Treatment

Treatment in an emergency may continue only for as long as is reasonably necessary to:

• find a practical means of enabling communication with the capable patient; or,
• find the incapable patient’s SDM.

Physicians must ensure that reasonable efforts are made to enable communication or find the SDM.