Occupational therapists (OTs) have ethical and legal obligations for obtaining consent. The ethical obligations of OTs are discussed in the Code of Ethics and are based on the fundamental values of trust and respect and the principles of client-centred practice, respect for autonomy, collaboration and communication. As regulated health professionals, OTs are also legally accountable for obtaining consent for the provision of care and for the collection, use and disclosure of personal health information. The Standards for Consent describe the minimum expectations for OTs with respect to obtaining consent
The term “service” will be used throughout these standards to encompass all aspects of occupational therapy service delivery including assessment, treatment and consultation for which an OT must obtain consent. OTs are accountable for obtaining consent for all services and for the collection, use and disclosure of personal health information.
Consent is a process that requires a dialogue between the person proposing the service and the person giving consent for that service or service plan. Consent is informed if, before voluntarily agreeing to the service provision, the person making the decision received the information that a reasonable person in the same circumstances would require in order to make a decision about that service.
Consent can be written or oral, express or implied. OTs are strongly encouraged to obtain express consent whenever possible. Regardless of the format in which consent is obtained, there should be documentation about consent in the client record.
The Health Care Consent Act, 1996 (HCCA), and the Personal Health Information Protection Act, 2004 (PHIPA), emphasize the principles of effective and transparent communication with clients, and the requirement to obtain consent before providing services and/or collecting, using, or disclosing personal health information.
The purpose of the HCCA is to:
- establish rules for the consistent application of consent;
- enhance autonomy of clients;
- promote communication and understanding between health practitioners and their clients;
- facilitate care for persons lacking capacity to make decisions;
- ensure a role for family members in decision-making for clients lacking capacity; and,
- permit intervention by the public guardian and trustee.
The HCCA addresses consent as it applies to:
- consent for treatment
- consent for admission to a care facility
- consent for the provision of a personal assistance service.
It is
important to recognize that the HCCA does not and cannot deal with every aspect of consent as the law is constantly evolving in this area. This means that
in circumstances that are not specifically covered by the HCCA, OTs still have an obligation to obtain consent.
- PHIPA defines the requirements for the collection, use and disclosure of personal health information and the responsibilities of health information custodians and agents. It is essential that OTs understand their role in the management of personal health information to ensure client privacy is respected and ‘knowledgeable’ consent1 is obtained for the collection, use and disclosure of personal health information.
The purpose of PHIPA is to:
- establish rules for the collection, use and disclosure of personal health information about individuals that protect the confidentiality of that information and the privacy of individuals with respect to that information, while facilitating the effective provision of health care;
- provide individuals with a right of access to personal health information;
- provide individuals with a right to require the correction or amendment of personal health information; and,
- provide for independent review and resolution of complaints with respect to personal health information.
Expectations regarding consent may vary according to practice setting, area of practice and client population. Additional legislation, such as the
Substitute Decisions Act, 1992, the
Mental Health Act, 1990 and the
Insurance Act, 1990 may apply. In some circumstances OTs may be accountable to additional regulators, for example, the Financial Services Commission of Ontario, and need to consider other consent legislation. It is the responsibility of the OT to determine the legislative, regulatory, and organizational requirements relevant to obtaining consent in the context of their practice setting.
Occupational therapists obtaining consent for the purpose of conducting research involving human subjects must have approval from a valid research ethics board for their proposed study including the process and format for obtaining consent. In addition, OTs must comply with their legal obligations under PHIPA when collecting, using or disclosing personal health information in relation to all research initiatives.
Informed consent is an ongoing process that starts with the researcher's first contact with the individual and continues until the study is complete or the participant withdraws. Any discussion of informed consent with the participant, the written informed consent form and any other written information given to participants should provide adequate information for the participant to make an informed decision about their participation (Health Canada, 2016).
For OTs working in non-clinical roles, it is important to understand the requirements for obtaining consent for access and disclosure of information contained in client and/or business records to maintain the privacy and confidentiality of clients and the workplace. As a manager, a business owner, a professional practice leader or a consultant, non-clinical OTs may be required to access and manage clinical records for several different reasons. Prior to accessing or disclosing any information, an OT must be certain they have the appropriate legal authority to do so and that consent has been obtained when necessary.