PROMOTING QUALITY PRACTICE

Health Care Consent Act

College of Occupational Therapists of Ontario
February 1998

Practice Scenarios:

The College receives many telephone calls related to the Health Care Consent Act and Substitute Decisions Act, 1996. While many consent-related issues were addressed in the College's November 1996 Promoting Quality Practice, below are some scenarios related specifically to the legislation, and the College responses:

1. An occupational therapist was asked to assess a client's capacity to understand and consent to the treatment being proposed by a team. The OT is not part of the team; is this appropriate?

2. An occupational therapist who works in a long-term care facility and whose responsibilities include client discharge planning, reported that an elderly male client was adamant that he wanted to go home, but the team believed he would not be safe there. The OT had been asked to be the "evaluator" under the Health Care Consent Act, and determine whether the client was safe to go home. The OT asked whether there was a formal tool that should be used for such an evaluation.

3. An occupational therapist working in a general hospital on a psychiatric unit is regularly asked by the team to assess clients for their competency to handle their money. The OT asked whether she was acting as an evaluator or capacity assessor under the Health Care Consent Act or the Substitute Decisions Act.

Probing Questions

A. Under the Health Care Consent Act and Substitute Decisions Act, how are the following terms/responsibilities defined: consent, capacity, evaluator, capacity assessor, substitute decision-maker, Consent and Capacity Board, Public Guardian and Trustee? How is capacity determined?

B. Under these Acts, who has the responsibility for the client's decisions? What is the role of the health professional?

C. When conducting an evaluation or a capacity assessment under the Acts, should the occupational therapist inform the client of the purpose of the interview? Can a person refuse to undergo an evaluation? What happens if the treatment team disagrees with the treatment decisions made by the client or the substitute decision-maker?

COLLEGE QUALITY PRACTICE ANALYSIS
Consent can be approached on many levels. It is a philosophical concept, delineated in occupational therapy and ethical models and theories of practice, as well as in legal principle, supported by College regulation*, common law and the Health Care Consent Act, 1996.

PRINCIPLE OF INFORMED CONSENT
Within any client/therapist interaction, the occupational therapist is in a position of trust; the client perceives the therapist as having knowledge, professional skill and judgement, and a commitment to providing quality service. The client also believes that the therapist will regard him or her as an active and valued participant within the client/therapist relationship. To establish and maintain the trust relationship, occupational therapists must practise within the principle of informed consent with all clients, in all practice settings and for all aspects of practice. Obtaining informed consent from all clients must become part of daily practise.

HEALTH CARE CONSENT ACT, 1996

Informed Consent:

The Act sets out that a health practitioner must obtain the client's informed and voluntary consent for the following:
  • for a proposed treatment (whether therapeutic, preventative, palliative, diagnositc, cosmetic, or for any other health-related purpose);
  • for administering the treatment;
  • for admission to a care facility, as defined in the Charitable Institutions Act, Homes for the Aged and Rest Homes Act, or the Nursing Home Act; or,
  • for provision of personal assistance services, such as grooming, eating, etc.
College guidelines on the Health Care Consent Act are set out in the College's A Guide to the Health Care Consent and Substitute Decisions Legislation for Occupational Therapists, September 1996, which was previously forwarded to all registrants.

Under the Act, consent is considered informed if the client is deemed capable and understands the nature and expected benefits of the treatments, alternative courses of action, and the likely consequences of not having the treatment. As well, the person must receive answers to their questions. The consent can be given by a client for a plan or course of treatment; consent can be written or implied. Consent must be obtained by the health practitioner providing the service or by one health practitioner on behalf of all involved providers if she or he can address all issues related to any specific proposed treatment by any team member.

Capacity to Consent:

The occupational therapist must use professional judgement to determine if the client has the capacity to consent to the proposed treatment, admission to a care facility or provision of assistance services. The Act (s. 4(2)) clearly states that the client is presumed to be capable to make the required decision(s). Capacity is not determined by age but rather by a cognitive ability to understand the decision required and the repercussions. Incapacity is treatment specific (i.e., related to a specific treatment plan or course of treatment) and can change over time. The College's A Guide to the Health Care Consent and Substitute Decisions Legislations for Occupational Therapists, sets out a three step analysis to assist OTs in assessing a client's capacity to provide consent to treatment, admission to a care facility or provision of personal assistance services (pp11-12). It also provides guidance related to provision of information to clients found incapable of making treatment, admission to care facilities or personal assistance services decisions (pp12-13), and lists the hierarchy of persons who can act as substitute decision makers, as set out in the Health Care Consent Act (p. 15).

The Act clearly sets out that it is NOT the role of the occupational therapist to make decisions for the client. The OT's role is only to provide clear information upon which the client can reach a decision to consent to or refuse treatment, admission to a care facility or personal assistance services. In the event the client is determined to be incapable, the client's substitute decision-maker or guardian is responsible for providing consent. The occupational therapist must respect the decision of the client or the client's substitute decision-maker or guardian.

Role of the Evaluator:

Under the Health Care Consent Act, registrants of the Colleges of Occupational Therapists, Nurses, Physiotherapists, Audiologists and Speech-Language Pathologists, Physicians and Surgeons and Psychologists may act as an evaluator for admission to a care facility or for personal assistance services.

It is the role of the evaluator to interview the client to assess his or her capacity to give consent to admission to a care facility or for personal assistance services.

While the Act does not require an evaluator to inform the client of the purpose of the interview, based on a recent Court decision (Koch, March 1997), the client should be fully informed of the purpose and implications of the interview and that he or she has the right to refuse. As well, the client should be informed that he or she can have someone attend the interview with them. A lawyer, friend or relative may be present if the client wishes. The Act does not require an individual to participate in the interview; there is no mechanism in the Act to deal with clients who refuse to be interviewed.

Again, the three step analysis set out in the College's A Guide to the Health Care Consent and Substitute Decisions Legislations for Occupational Therapists can be used to assist in assessing a client's capacity to consent to admission to a care facility or for personal assistance services. The recent Court decision (Koch) sets out that an evaluator should carry out an evaluation expecting that the findings may be challenged. As such, the evaluator must ensure a careful, open process is followed – rights advice is provided; simple language that avoids complex terminology is used; and "meticulous files" are kept. As well, the evaluator is expected to "probe" to determine the thought process by which a client arrived at a response and to "verify" the accuracy. This may involve contacting pertinent individuals; however the evaluator must take into account the underlying motives of these individuals. Finally "compelling evidence is required to override the presumption of capacity".

If the client is found capable, the client's decision must be respected. In the event the client is found by the evaluator to be incapable, the client's substitute decision-maker or guardian is responsible for making the required decision.

Disagreements with Substitute Decision-Makers' Decisions:

Section 21 of the Health Care Consent Act sets out that a substitute decision-maker must, in giving or refusing consent to treatment, admission to a care facility or provision of personal assistance services, on behalf of an incapable person do so in accordance with two principles:
  • the known wish applicable to the circumstances that the incapable person expressed while capable and after reaching the age of 16
  • if there is no such wish or if it is impossible to comply with the wish, the incapable person's best interests.
The Act states that if the health care practitioner is of the opinion that the substitute decision-maker did not comply with the above principles, an application to the Consent and Capacity Board for a review of the substitute decision-maker's decision can be made. Section 37 sets out the appropriate persons to submit an application for review.

ROLE OF THE CONSENT AND CAPACITY BOARD AND
THE PUBLIC GUARDIAN AND TRUSTEE:
The Consent and Capacity Board is a review or adjudicative body. It's responsibilities include deciding on applications where there is dispute as to the capacity or incapacity of an individual, the appointment of representatives, or disagreement as to an incapable person's wishes.

The Public Guardian and Trustee is the substitute decision-maker of last resort and steps in if two equally-ranked substitute decision-makers cannot agree. The Public Guardian and Trustee also oversees the Substitute Decisions Act.

SUBSTITUTE DECISIONS ACT, 1996
The Substitute Decisions Act deals with decision-making about personal care or property on behalf of an incapable person who needs decisions made on their behalf on an on-going basis. The Act is governed by the Office of the Public Guardian and Trustee. Capacity is determined by a designated capacity assessor – an occupational therapist, nurse, social worker, doctor or psychologist who has successfully completed specific training required by the Attorney General.

Responses to Scenarios

1. Consent may be sought by a practitioner proposing a specific treatment or by a practitioner on behalf of an interdisciplinary team for a plan of treatment. In either case, the practitioner must be able to provide the information a reasonable person would need to know to give informed consent. In doing this, the practitioner would determine if the client was capable to consent to the proposed treatment or course or plan of treatment. Consent is treatment-specific, as is determination of incapacity, and can change over time. In this situation, as the OT is not a member of the team, and therefore would not be directly involved with the implementation of the proposed treatment, the occupational therapist should not seek the patient's consent for the proposed treatment or be involved in determining their capacity to consent to the proposed treatment. The occupational therapist can provide a general cognitive assessment.

2. Guidelines for completing an evaluation are addressed in the College's A Guide to the Health Care Consent and Substitute Decisions Legislations for Occupational Therapists and in this column.

3. The Health Care Consent Act addresses only consent for treatment, admission to a care facility and provision of personal assistance services. The Substitute Decisions Act does include issues related to property. However, under this Act, capacity to manage property is determined by a capacity assessor. In this situation the occupational therapist is not acting under the Health Care Consent Act, and as she/he is not a designated capacity assessor, has no role under the Substitute Decisions Act. Again, the occupational therapist can provide a general cognitive assessment.

Summary

In evaluating a client to determine capacity for consent to treatment, admission to a care facility or provision of personal services, occupational therapists are not to inject their personal values and priorities into the process. The best interests of the client are not to be confused with the client's cognitive capacity. The right of the client to voluntarily assume risks is to be respected.



* Professional Misconduct Regulation, Section 3

Resources:
Professional Misconduct Regulation

Health Care Consent Act

Substitute Decisions Act

A Guide to the Health Care Consent Act and Substitute Decision-Makers' Legislations for Occupational Therapists, College of Occupational Therapists on Ontario, September 1996.

Re Koch (1997) 3 O.R. (3d) 5.