Obtaining Consent and Substitute Decision-Makers

BACKGROUND 

Robert, an occupational therapist (OT) in private practice, receives a referral from a lawyer to assess a client named Louisa who sustained a head injury due to a motor vehicle accident. Louisa presents with cognitive impairments. Her lawyer requests an updated assessment report on the impact of the accident on Louisa's functional abilities, which will be used in a court case. 

During his initial contact with Louisa, Robert realizes that she is unable to consent to an occupational therapy assessment as she cannot understand or comprehend the nature, purpose, risks or benefits of the assessment. Robert knows that if Louisa cannot provide informed consent, he is unable to proceed with the assessment, and must use a substitute decision-maker (SDM).  A substitute decision-maker is a person who makes decisions - and is authorized to give or refuse consent about health care interventions - on behalf of someone incapable of making their own decisions.

Robert is aware that Louisa does not have a spouse or children. Based on notations within the file, Louisa's parents are living out of the country, and there are two adult siblings in the city. Robert has not connected with her parents, who currently reside in England. He has spoken with Louisa's sister, who states that there is no need to involve the other brother. It becomes clear that the two siblings are not in agreement. Assuming all family members are capable, who should Robert speak with to obtain consent for the occupational therapy assessment?

CONSIDERATIONS 

  • Robert contacts Louisa's lawyer to advise that Louisa does not have the capacity to consent and there is a need for a substitute decision-maker. The lawyer agrees.

  • Robert reviews the Standards for Consent to obtain clarity on the expectations for practice. 
  • Robert recalls that the Health Care Consent Act, 1996 provides a hierarchy of substitute decision-makers who could give consent on behalf of an individual. Generally, an occupational therapist must obtain consent from the highest-ranking available and willing substitute decision-maker unless a lower-ranking substitute decision-maker believes that the higher-ranking substitute decision-maker would not object.
  • Robert also understands that if a person, while capable, has appointed a Power of Attorney for Personal Care (a legal document in which one person gives another person of their choice the authority to make personal care decisions on their behalf if they become mentally incapable), the appointed Power of Attorney will outrank non-appointed family members. Robert knows that if a Power of Attorney for Personal Care does exist, he must be exercise caution and be thorough when confirming the person's identity, for example, by requesting to view or obtaining a copy of the Power of Attorney documents)
  • Substitute decision-makers do not need to be at the bedside to be "available". As Louisa's parents reside in England, Robert understands that being "available" could mean in person, by phone, by email, or by other means of communication. 
     

ACTION

1. Since Louisa's parents are ranked higher in the Substitute Decision-Maker Hierarchy list, Robert decides to contact them by phone. After two attempts, the parents leave a voicemail for Robert indicating they are dealing with their medical issues and do not want to be involved. They confirm that Louisa has no other legally appointed substitute decision-makers nor does she have a Power of Attorney for Personal Care in place. 
 
2. As Louisa's siblings are next on the hierarchy and are equal ranking substitute decision-makers, Robert contacts each sibling to determine if one or both are willing to act as a substitute decision-maker. Robert explains to each sibling that if there is no agreement between the siblings about health care decisions, two options are available for consideration: 

2.1. Have one of the siblings, an equally ranked decision-maker, apply to the Consent and Capacity Board (CCB) to grant the right to make decisions.

2.2. Involve the Office of the Public Guardian and Trustee (OPGT) to decide if all other conflicts fail to resolve.

3. Both siblings realize their disagreements would further delay the assessment and inadvertently impact their sister's care.

4. The siblings agree to work together to make the best decisions for Louisa. If this proves difficult, the siblings understand they can revisit an application to the Consent and Capacity Board later.

CONCLUSION

A person can make decisions about assessment and treatment if they can understand the relevant information and appreciate the implications of a decision or lack of decision. A person is presumed to be capable of making health care decisions unless there are reasonable grounds to suspect incapacity. If you determine a client to be incapable of making decisions, consent for health care decisions must be obtained from a substitute decision-maker. The substitute decision-maker must be capable of giving consent and at least 16 years old (unless they are a parent of the client). The Health Care Consent Act, 1996 sets out requirements for obtaining informed consent for treatment and lists the Hierarchy of Substitute Decision Makers.  


As an occupational therapist, you must adhere to the legislation and use your knowledge to help substitute decision-makers understand the client's circumstances. In this scenario, Louisa's siblings were willing and available to act as substitute decision-makers, understood the time constraints and chose to reconcile their differences in the best interest of Louisa. 

 

REFERENCES 

CONTACT

If you have any questions about this case, or have any ideas or requests for future cases, contact the Practice Resource Service: 1.800.890.6570/416.214.1177x240 or practice@coto.org.

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