TO LIVE OR LET DIE The Laws of Informed Consent

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1 TO LIVE OR LET DIE The Laws of Informed Consent OBJECTIVES Provide an understanding of the law of informed consent, substitute decision makers and minors rights to accept or refuse treatment. *The information conveyed in this presentation is not intended to be construed or to substitute for legal advice. Health Law legal advice must be personally obtained from a lawyer relevant to your facts.*

2 Copyright 2017 by Sea Courses Inc. All rights reserved. No part of this document may be reproduced, copied, stored, or transmitted in any form or by any means graphic, electronic, or mechanical, including photocopying, recording, or information storage and retrieval systems without prior written permission of Sea Courses Inc. except where permitted by law. Sea Courses is not responsible for any speaker or participant s statements, materials, acts or omissions. May 11, 2017

3 Health Care Consent Act Mandate: Provides guidelines for informed consent regarding treatment, personal care services or admission to a long-term care facility, and clarifies the roles and responsibilities of substitute decision-makers 2

4 Health Care Consent Act & Substitute Decisions Act Codifies the common law Codifies the elements of capacity and consent, including informed consent Consent can still be implied Substitute Decisions Act: empowering the young, the old, the disabled and the alternative lifestyle patients 3

5 Health Care Consent Act: No Treatment Without Consent A health practitioner who proposes a treatment for a person shall not administer the treatment, and shall take reasonable steps to ensure that it is not administered, unless, (a) the person is capable of giving consent to the treatment and has expressly given that consent 4

6 A person is capable with respect to treatment if the person is able to understand the information that is relevant to making a decision about The treatment and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. Health Care Consent Act: Capacity Capacity can fluctuate with time and may be dependent on the type of Treatment. 5

7 Situations of Incapacity Too young (i.e. a minor) Unconscious patient Language Barriers (unable to understand information) Mentally incompetent 6

8 Health Care Consent Act Elements of Consent The following are the elements required for consent to treatment: 1. The person must be capable of giving consent 2. The consent must relate to the treatment 3. The consent must be informed 4. The consent must be given voluntarily 5. The consent must not be obtained through misrepresentation or fraud 7

9 Health Care Consent Act, Informed Consent In order for consent to be informed, the patient must receive information regarding the following: The nature of the treatment The expected benefits The material risks of the treatment The material side effects of the treatment Alternative courses of action The likely consequences of not having the treatment An opportunity to ask questions and have their questions answered 8

10 Health Care Consent Act, Age of Consent Not stated in the Act Inferred from overlap with Substitute Decisions Act, 1992 Presumption of capacity 18 years of age or more presumed to be capable of entering into a contract 16 years of age or more presumed to be capable of giving or refusing consent in connection with their own personal care Age of consent may be much younger Under 16 years must be a mature minor (question of law) 9

11 J.S.C. v Wren (1986) 35 D.L.R. (4th) 419 (Alta. C.A.) Facts: A 16 year old girl became pregnant while living at home. She left several weeks later and had avoided contact with her parents. She attended on a physician and surgeon and received approval for a therapeutic abortion Her parents sought an injunction which they were not granted The parents appealed Grounds of Appeal: Whether the girl had given informed consent to the proposed surgical procedure. 10

12 J.S.C. v Wren cont d Notable Quote: as a matter of law the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed. Held: Appeal was dismissed 11

13 Mature Minors: T.T.D. (Re) [1999] S.J. No. 143 (Sask. Q.B.) Facts: T.T.D. was 13 years old and diagnosed with cancer. His parents refused medical treatment considered essential and T.T.D was deemed to be a child in need of protection. The Minister consented to the medical treatment and T.T.D. completed his first round of chemotherapy. He then indicated that he did not want any more treatment. His parents wanted to take T.T.D. to an Institute outside of Canada that would treat his cancer with diet, herbs and multi-vitamins. T.T.D. s father had told him that the Institute had an 85 to 90 percent chance of curing him. There was evidence of T.T.D. s social experiences within his family and church. Issue: Was T.T.D. a mature minor in law, capable of giving or refusing consent on his own behalf? 12

14 Mature Minors: T.T.D. (Re) cont d The determination of whether a child is a mature minor must always be made on a case-by-case basis. The relevant factors a court must take into consideration: 1. The child s age and maturity 2. The nature and extent of the child s dependency upon his guardians in taking care of himself, making his own decisions, etc. 3. The complexity of the treatment Held: Not a mature minor Court ordered treatment continued Image from 13

15 Common Law Definition of Informed Reibl v. Hughes [1980] 2 S.C.R. 2d 880 take sufficient care to convey to the plaintiff and assure that the plaintiff understood the gravity, nature and extent of risks specifically attendant on the endarterectomy in particular the risk that as a result of the operation he could die or suffer a stroke of varying degrees of severity. (quoting from the Trial decision) should, without being questioned, disclose to him the nature of the proposed operation, its gravity, any material risks and any special or unusual risks attendant upon the performance of the operation. (quoting from Hopp v. Lepp, [1980] 2 S.C.R. 192). 14

16 Withdrawal of Consent A consent that has been given by or on behalf of the person may be withdrawn at any time Allan v. New Mount Sinai Hospital (1981) 109 D.L.R. (3d) 634 Partially sedated patient tells anaesthetist not to administer anaesthetic into her left arm Anaesthetist had an obligation to comply with the wishes of the patient It is the patient, not the doctor, who decides whether surgery will be performed, where it will be done, when it will be done and by whom it will be done. Held: Successful battery action 15

17 Withdrawal of Consent Ciarlariello v. Schacter, [1993] 2 SCR 119 Ms. C was diagnosed with a suspected aneurism and required two angiograms. Ms. C consented to the second angiogram but after experiencing discomfort withdrew her consent. The physician continued the test after informing her that the procedure required only another five minutes and after obtaining consent. Unfortunately she suffered a reaction that rendered her quadriplegic. It was determined that the renewal of consent was given based on the earlier disclosures. If, during the course of a medical procedure a patient withdraws the consent to that procedure, then the doctors must halt the process Held: Successful battery action 16

18 Emergency Treatment: Exception to the Informed Consent Rule Definition of Emergency: There is an emergency if the person for whom the treatment is proposed is apparently experiencing severe suffering or is at risk, if treatment is not administered promptly, of sustaining serious bodily harm [Health Care Consent Act s.25(1)] Scope of Emergency Exception: Continue only as long as necessary until practical means of obtaining consent or refusal to the continuation of the treatment, either from a substitute decision maker or by finding a practical means of enabling communication to take place [Health Care Consent Act s.25(6)-(8)] 17

19 Doctrine of Emergency Consent or Reasonable Latitude Test Reasonable latitude must, however, be allowed to the physician in a particular case; and we [the courts] would not lay down any rule which would unreasonably interfere with the exercise of [the physician's] discretion or prevent [the physician] from taking such measures as his judgment dictated for the welfare of the patient in a case of emergency. Marshall v. Curry [1933] 3 D.L.R. 260 (N.S. Supreme Ct.) 18

20 Consent: Emergency Situations A health practitioner shall not administer a treatment [without consent in an emergency situation] if the health practitioner has reasonable grounds to believe that the person, while capable and after attaining 16 years of age, expressed a wish applicable to the circumstances to refuse consent to the treatment (Health Care Consent Act s.26) 19

21 Statutory Protection from Liability Immunity from suit when: Proceed with consent in good faith and on reasonable grounds believing it is sufficient Proceed without consent in good faith believing an emergency situation exists 20

22 Common Law 21

23 Consent in the ER: Malette v. Shulman Facts: Mrs. Malette was a Jehovah s Witness who was involved in a serious car accident and was taken to hospital. Upon arrival, the nurse found a card in Mrs. Malette s possession which stated that she did not wish to have any blood transfusions under any circumstance and alerted Dr. Shulman about it. The card was neither signed nor dated. Dr. Shulman decided to ignore the instructions on the card and administered a life-saving blood transfusion to the patient. Mrs. Malette subsequently sued and recovered for battery for receiving the blood transfusion. Malette v. Shulman [1987] 63 O.R. (2d) 243; aff d [1990] 72 O.R. (2d) 417 (Ont. C.A.). 22

24 Consent in the ER: Malette v. Shulman Held: Dr. Shulman should have abided by the patient s wishes as stated in the Jehovah s Witness card. Damages for assault and battery awarded. Notable Quote: The interest in the freedom to reject, or refuse consent to intrusions of bodily integrity outweighs the interest of the state in the preservation of life and health and protection of the integrity of the medical profession. 23

25 A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30 Facts: C was admitted to hospital when she was 14 years old, suffering from lower GI bleed. C required treatment with blood and/or blood products and refused receipt of blood and/or blood products C signed an advance medical directive containing written instructions not to be given blood and/or blood products under any circumstances C was apprehended as a child in need of protection and sought treatment order under Manitoba s Child and Family Services Act (CFSA), by which court may authorize treatment it considers to be in child s best interests. Parents and C challenged the treatment order as a violation of C s right to freedom of religion 24

26 A.C. v. Manitoba (Director of Child and Family Services), Continued Held: There was no violation of C s constitutional rights but if there was there was a violation it was justified by section 1 of the Charter. Summary: Viewed through lens of s.2(a) of Charter, the limit on religious practice imposed by the legislation emerges as justified under s.1 because the objective of ensuring the health and safety and of preserving the lives of vulnerable young children is pressing and substantial, and the means chosen giving discretion to the court to order treatment after a consideration of all relevant circumstances is a proportionate limit on the right. 25

27 Substitute Decisions Act Only applies to incapacitated patients, i.e. aged or infirm Codifies common law Provides a mechanism to opt out of certain legal provisions Provides a mechanism for health care providers to address their concerns regarding the motivations or decision-making of the next of kin 26

28 Substitute Decision-Making - Hierarchy Any one of the following is permitted to give consent on the incapable patient s behalf (without written authority): 1. A spouse or partner (including common law or same sex partner) 2. A parent of the patient 3. An adult child of the patient 4. A brother or sister of the patient 5. Any other relative of the patient Unless: The patient has signed a Power of Attorney for Personal Care A health professional has become concerned that the next of kin is not acting in the best interests of the patient and applies to the Consent and Capacity Board for directions 27

29 Power of Attorney for Personal Care A person may give a written power of attorney for personal care, authorizing the person or persons named as attorneys to make, on the grantor s behalf, decisions concerning the grantor s personal care [Substitute Decisions Act, s.46(1)] Substitute decision making does not extend to physician assisted death 28

30 Purpose and Scope of Power of Attorney for Personal Care Includes an authorization to refuse consent to treatment Physician can be suspect of decision maker (can move to Capacity and Consent Review Board) Decisions must be consistent with patient s known wishes (when competent) Inherently illegal requests cannot be honoured (i.e. consent to be killed) Consent to physician assisted dying is not eligible through advance directives or through a power of attorney 29

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