PROMOTING QUALITY PRACTICE

Health Care Consent Act – Informed Consent and Release of Documents

College of Occupational Therapists of Ontario
February 1999

Practice Scenario
I am in private practice. Recently, I received a contract from a rehabilitation company for case management. The request originated from an insurance company and was for an individual injured in a motor vehicle accident. I have met with the patient several times, and have contacted the insurance company adjustor, various health care professionals including the patient's doctor, and other involved parties. I just completed my initial report for the insurance company today - the document is dated today - and I received a FAX from the patient's lawyer withdrawing her consent for treatment and to having any documentation forwarded to the insurance company. As well, the FAX requests a copy of all information on file to date.

Probing Questions
  • Who is the client?
  • Does the Health Care Consent Act impact on this situation?
  • To whom should the documentation be released?
  • What documentation should be released - the initial report; correspondence only from the occupational therapist; correspondence from all professionals; rough notes?
  • How does this scenario apply to hospital practice?
Response:

THE CLIENT
In this scenario, as in most occupational therapy practices, there is more than one client. The definition of the client in the draft College Code of Ethics and Standards of Practice recognizes that, in the provision of occupational therapy services, occupational therapists are often accountable to multiple clients. Clients include, but are not limited to: an individual(s) in receipt of direct or indirect services (including families, staff, students, employers); a group(s); an agency(s); an organization(s); or a business. The primary client is the recipient of service.

The draft College Code of Ethics and Standards of Practice define service as specific goal-directed activities provided to clients, for example direct clinical care, research, teaching, administration, consultation.

Accordingly, the occupational therapist in the scenario is accountable to three clients:
  • The Primary Client - Client A - the individual injured in the motor vehicle accident;
  • Client B - the rehabilitation company who subcontracted the insurance company's request for occupational therapy services; and
  • Client C - the insurance company.
The occupational therapist must also consider her own self interest.

As stated in the draft College Code of Ethics and Standards of Practice, having more than one client requires occupational therapists to use professional judgement to recognize the separate and often competing expectations of each client. The occupational therapist must also recognize her or his own professional self-interest. The therapist must then address each client's expectations honestly and with integrity, addressing their needs in an objective, transparent, and clear manner.

As such, the occupational therapist's role, scope of practice, purpose of the intervention, intended product of the intervention (i.e., report delineating functional abilities), and accountabilities must be disclosed to all clients before or at an initial meeting, preferably in writing. At the same time, the occupational therapist must disclose all clients' roles and expectations.

INFORMED CONSENT
Informed consent can be approached on many levels. It is a philosophical concept (delineated in occupational therapy and ethical models and theories of practice) and a legal principle (supported by College regulation [Professional Misconduct Regulation, Section 3], common law, and the Health Care Consent Act). Informed consent is an evolving issue and may be perceived more stringently in the future than it is today. For occupational therapists, it essentially means that the client has the right to make decisions related to occupational therapy services.

Within the client/therapist relationship, 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. No intervention - assessment, service implementation, etc., should take place unless the client has consented to it. Obtaining informed consent from all clients must become part of daily practice.

The law, including the Health Care Consent Act, applies to all client/therapist relationships, including the above scenario. The Health Care Consent Act applies to health care service provided within the definition of "treatment", regardless of the funding source or location. (The Act also applies to the admission to long term care facilities and the delivery of personal assistance services within those facilities).

Informed consent is almost always obtained through discussion with the client; the client's values and beliefs must be taken into account. The occupational therapist must:
  • explain the proposed assessment(s), service implementation(s), etc. to the client, providing information that is required and reasonable considering the situation, in order for the client to make a decision;
  • provide the client with alternative(s);
  • respond to the client's request for additional information; and
  • upon the client's request (refusal of consent), not initiate or stop an intervention.
Client consent for a single intervention or a plan of intervention (including treatment which falls under the Health Care Consent Act) can be given verbally or in writing, and can be expressed or implied. In some circumstances, it is extremely important that written consent be obtained (e.g., in the insurance industry).

In situations where the client has not provided consent in writing, the occupational therapist should document that the client consented to the intervention. This could consist of a note in the primary client's file indicating that:
  • the therapist explained the intervention (as set above);
  • the client indicated consent by ...(example: nodding his head); and
  • the client cooperated with the intervention.
  • Possible alternatives may be:
  • documenting the need to obtain consent for each intervention or course of intervention in policy and procedures, so as to establish seeking informed consent as a consistent component of practice (documenting by exception); or
  • using standardized forms on which the therapist can document (check-off) as client consent is received for each aspect of intervention.
With both these approaches, institutional policies must be considered. The therapist should use professional judgement to decide when to document more fully.

Finally while consent is activity specific, not global or "blanket", one health care practitioner can obtain consent on behalf of all involved health practitioners by clearly outlining the care process to be provided (e.g., the insurance company obtaining client consent for the involvement of all health care practitioners involved in a treatment plan, including occupational therapy; the team leader obtaining consent for treatment interventions by all team members, including the occupational therapist, as required by the Health Care Consent Act).

In the scenario above, the occupational therapist's authority to assess Client A, plan a treatment program, and write a report was dependent on Client A having consented. Client A gave that consent in order to obtain insurance benefits, but then withdrew her consent. The occupational therapist must respect Client A's request to withdraw her consent. Subsequently the occupational therapist must terminate her interventions with Client A.

RELEASE OF DOCUMENTATION
Client A also asked that no documentation be forwarded to the insurance company and for a copy of all documentation on file. This raises a thorny issue - who should receive occupational therapy documentation?

Every health professional has a duty to protect client privacy. This includes keeping documents confidential unless the client consents to their disclosure. In addition, the client has the right to examine his or her own health records.

In general:

In situations where:
  • a client contracts directly with the occupational therapist for services;

    the occupational therapist must release all information directly and promptly to the client, unless there are concerns about client safety or harm to a third party (Professional Misconduct Regulation, Section 17).
In situations where:
  • the occupational therapist is employed by an agency or company;

    the client's health record is not considered the primary responsibility of the therapist. In these situations, requests for a report must be referred to the appropriate source within the agency or company. (Professional Misconduct Regulation, Section 17).
In situations where:
  • Section 17 of the Professional Misconduct Regulation does not apply (the primary client did not self-refer and the occupational therapist is not an employee); and

    legislation and/or policy does not exist (such as within the insurance industry);

    the College recommends that private practice occupational therapists and rehabilitation companies employing or sub-contracting to occupational therapists negotiate agreements with the initial referral source (usually the payer) that clearly state that occupational therapy reports will be released to the primary patient as well as to others included in the agreement (e.g., the initial referral source, insurance company, family doctor, lawyer, etc.). There should be a clear understanding before the therapist's initial contact with the primary client. Therapists could then, with the primary client's consent, directly release their reports on request from any person or agency listed in the initial agreement. This information must be disclosed to the primary client before or at an initial meeting, preferably in writing.
In situations where:
  • an initial agreement outlining release of documentation was not negotiated; and
  • Section 17 of the Professional Misconduct Regulation does not apply;

    the report should be forwarded only to the initial referral source. It is generally recommended that requests for the report from another individual (including the primary client) or agency be forwarded to the initial referral source. Therapists should notify the individual and/or agency requesting the report and the referral source of this action, in writing, and (if the primary client has consented) the therapist's approval for release of the report.
In the scenario above, the occupational therapist is not an employee of the rehabilitation company or insurance company, and had not previously negotiated issues related to release of the report with the rehabilitation company.

However, with Client A's withdrawal of consent for treatment from the insurance company, the occupational therapist can only release her documentation to Client A. The occupational therapist cannot forward her report, or any other documentation, to the rehabilitation company/insurance company. Documentation previously forwarded to the rehabilitation company/insurance company would not be affected by the client's withdrawal of consent. The occupational therapist has a responsibility to inform the rehabilitation company and the insurance company that Client A has withdrawn consent to further treatment and to forwarding documentation to them. The insurance company can obtain the documentation through a legal process, if it so chooses.

In the scenario presented above, payment for the occupational therapy services becomes an issue - can Client A be charged for the report? If this potential issue and the ramifications were presented to the client prior to the initiation of the intervention, Client A can be charged; if not, the documentation must be released at no charge. It is recommended that occupational therapists present issues related to fees to clients, before or at an initial meeting, preferably in writing.

INFORMATION TO BE RELEASED TO CLIENTS
A decision of the Supreme Court found that the primary client has the right to access all information within his or her health care record, including correspondence and reports from other health care practitioners and rough notes.

Prior to releasing documentation to the client, an occupational therapist may wish to meet with the client to discuss the contents of the notes. The therapist may also wish to attach a letter to the rough notes indicating the information is open to misinterpretation and must be reviewed by an occupational therapist for interpretation.

SUMMARY
For all interventions, occupational therapists:
  • must disclose their own role, scope of practice, purpose of the intervention, intended product of the intervention (i.e., report delineating functional abilities) and accountabilities to all clients
  • must recognize all clients and disclose the clients to each other, including their expectations/roles (e.g., recipient of direct service, initial referral source, payer, legal representative, etc.);
  • should confirm with their employer/self referred client or negotiate with the initial referral source (often the payer of their services) through a written agreement, to whom reports and documentation will be released and the materials that will be released. This information must be disclosed to all clients; and
  • must practice and document informed consent with all clients
Disclosure should occur to all clients, ideally at an initial meeting, and if possible prior to it, and preferably in writing.

The College recommends that occupational therapists develop or have access to written documents that spell out the above issues for your setting. The information in the Practice Scenario applies to all practice sectors, including hospitals. Again, the occupational therapist must be objective, transparent, and clear in all dealings with clients.

Your response to this practice scenario is appreciated. Please contact Elaine Kuretzky, Director of Professional Practice, with your comments or questions:

Elaine Kuretzky
(416) 214-1177 or 1-800-890-6570
ext. 27
coto003@coto.org



Relevant Reference Materials:
  • COTO Professional Misconduct Regulation - circulated previously
  • COTO Draft Standards of Practice (expected to be approved by Council in November 1996)
  • COTO Draft Code of Ethics (expected to be approved by Council in November 1996)
  • Health Care Consent Act and Substitute Decisions Act
  • COTO A Guide to The Health Care Consent and Substitute Decisions
  • Legislation for Occupational Therapists - circulated previously
  • Employer policies and procedures
Call the College during business hours Monday ­ Friday 8:30 a.m. - 4:30 p.m. at 1-800-890-6570 or send e-mail to coto003@coto.org for practice information.