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December 2018: Obtaining Consent from Divorced or Separated Parents

Q: When an OT is obtaining informed consent for occupational therapy services provided to a child, are both parents required to give consent or is it sufficient for an OT to rely on consent from one parent? What if the parents are divorced or separated?

A: When parents of a child are no longer in a relationship together, often the consent of only one parent is sufficient to proceed with occupational therapy service delivery, as both parents are equally ranked substitute decision makers (SDMs) for a child. In circumstances where there is information available to the OT to contradict this assumption, the OT should exercise their professional judgement and make appropriate inquiries to establish whether the other parent’s consent is needed.

For example, a parent may contact the OT upon learning services have been provided to their child and advise consent of both parents has been court ordered. If this situation arises, the OT would be remiss to continue to provide OT services without investigating, and if necessary, obtaining both parents’ consent for future services. Equally, the parent retaining the OT’s services may say something that would cause an OT to suspect that the parent retaining their services is doing so without the other parent’s knowledge or consent. Depending on the information provided, this situation may prompt the need for the OT to investigate further before providing services. In the situation of divorced/separated parents having shared custody, proactive communication and information sharing with both parents about occupational therapy service delivery is ideal, if achievable.

The Health Care Consent Act, 1996 notes that:

20 (1) If a person is incapable with respect to a treatment, consent may be given or refused on his or her behalf by a person described in one of the following paragraphs:

1. The incapable person’s guardian of the person, if the guardian has authority to give or refuse consent to the treatment.

If when obtaining the consent of both parents, a conflict arises where one parent disagrees about the occupational therapy services to be provided and withholds their consent, the OT may have to contact the Public Guardian and Trustee as noted in Section 20(6) of the Health Care Consent Act: 

(6) If two or more persons who are described in the same paragraph of subsection (1) and who meet the requirements of subsection (2) disagree about whether to give or refuse consent, and if their claims rank ahead of all others, the Public Guardian and Trustee shall make the decision in their stead.  1996, c. 2, Sched. A, s. 20 (6).

Keeping in mind that it could take some time to obtain consent from the Public Guardian and Trustee, the OT would need to examine the level of risk of the occupational therapy services being proposed and the level of risk to the child of not receiving the services to determine if they can proceed. This process is outlined in our January 2018 – Case Study.

If you have any questions about this clarification document or have any ideas or requests for future case studies or Q&As, contact the Practice Resource Service: 1.800.890.6570/416.214.1177x240 or [email protected].

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