• Determining Capacity
• Consent for Occupational Therapy Service
• Consent to Collect, Use and Disclose Personal Health Information
• Consent for the Participation of Support Personnel, Students, and Others
• Withdrawal of Consent
• Third Party Consent
• Referrals from Third Party Payers and Independent Evaluations
• Documenting Consent
• Appendix 1
• Glossary

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.

• The following standards describe the minimum expectations for OTs.
• The performance indicators listed below each standard describe more specific behaviours that demonstrate the Standard has been met.
• It is not expected that all performance indicators will be evident all the time. It is expected performance indicators could be demonstrated by the OT if requested.
• There may be some situations where the OT determines that a particular performance indicator has less relevance due to client factors or environmental factors. Such situations may call for the OT to seek further clarification.
• It is expected that OTs will always use their clinical judgement to determine how best to obtain consent based on the scope of the practice, practice setting, client and stakeholder needs.
• It is expected that OTs will be able to provide reasonable rationale for any variations from the Standard.

 

In the event of any conflict or inconsistency in these Standards for Consent with any other College standards, the standards with the most recent issued or revised date prevail.

 

College publications contain practice parameters and standards which all OTs practising in Ontario should consider in the care of their clients and in the practice of the profession. College Standards are developed in consultation with OTs and describe current professional expectations. College Standards may be used by the College or other bodies in determining whether appropriate standards of practice and professional responsibilities have been maintained.

           

Pursuant to the Regulated Health Professions Act, 1991 (RHPA), the College is authorized to make regulations in relation to professional practice. The College’s Professional Misconduct Regulation establishes that “contravening, by act or omission, a standard of practice of the profession or failing to maintain a standard of the profession” constitutes grounds for professional misconduct.

Consent is a process, which begins with determining capacity to give consent. The OT must be satisfied that the client understands the information relevant to the proposed services and appreciates the reasonably foreseeable consequences of his/her decision or lack of decision related to the services.

Recognizing that an OT will only be evaluating capacity when the OT has reasonable grounds to suspect incapacity, the OT is not required to obtain consent from the client to assess capacity. However, it is expected that the OT will explain the process and address any questions the client may have regarding the assessment.

The OT must be aware that consent is situation-specific and that a client may be capable to provide consent with respect to a specific service and incapable with respect to another service. A client’s ability to provide consent may also fluctuate, meaning the client may be capable at one point in time and incapable at another.

The Health Care Consent Act, 1996 (HCCA) does not specify any age restrictions related to an individual’s ability to provide informed consent. The client’s age, diagnosis, language barriers or communication impairments should not result in any presumption of incapacity by the OT.

Standard 1

When obtaining consent for service, the OT will ensure that the client is capable of giving informed consent.

      Performance Indicators

It is expected that OTs will obtain consent for all aspects of occupational therapy service (assessment, treatment and consultation).

Informed consent is an ongoing process to be re-evaluated throughout the course of occupational therapy service delivery.

In seeking consent, OTs must use their professional judgement to determine what is appropriate and reasonable given the level of risk involved in the proposed service delivery. When determining risk, OTs should consider the nature of the service (for example, implications related to client safety or access to resources for future care), client factors (such as the stability of the client’s condition and the client’s expectations for service) and/or the requirements of the practice environment (for example, organizational policies that exceed College expectations).

Depending on the nature of the proposed services, the OT must use their discretion in determining whether it would be most appropriate to obtain consent separately for a specific component of the proposed service such as an assessment or for a plan of service which may include assessment and treatment.

Standard 2

The OT will ensure informed consent is obtained from the client or substitute decision-maker (SDM) at the start and throughout service delivery.

      Performance Indicators

According to PHIPA, personal health information means identifying information about an individual in oral or recorded form, if the information:

1. relates to the physical or mental health of the individual, including information that consists of the health history of the individual’s family,
2. relates to the providing of health care to the individual, including the identification of a person as a provider of health care to the individual,
3. is a plan of service for the individual,
4. relates to payments or eligibility for health care, or eligibility for coverage for health care, in respect of the individual,
5. relates to the donation by the individual of any body part or bodily substance of the individual or is derived from the testing or examination of any such body part or bodily substance,
6. is the individual’s health number, or
7. identifies an individual’s SDM. 

 

When referring to personal health information, OTs are required to obtain knowledgeable consent. Consent is knowledgeable if it is reasonable in the circumstances to believe that the individual knows the purpose of the collection, use and disclosure and is aware that they have the right to give or withhold consent for the collection, use of disclosure of personal health information. (PHIPA, s. 18(5)).

Standard 3

The OT will ensure that knowledgeable consent is obtained to collect, use, and disclose personal health information, unless consent is not legally required.

      Performance Indicators

Standard 4

The OT will obtain informed consent for the participation of support personnel, students and/or others in the provision of occupational therapy services.

      Performance Indicators

A client or SDM may withdraw consent at any time. The OT must respect the client’s decision.

Standard 5

The OT will ensure that the client or substitute decision maker (SDM) understands the right to, and the implications of, withdrawing consent.

      Performance Indicators

There are situations where one health care practitioner may obtain consent on behalf of other health care practitioners involved in the service delivery.

Standard 6

The OT will ensure consent for occupational therapy service obtained by a third party has been acquired using an informed consent process.

      Performance Indicators

Referrals from third parties describes circumstances where the OT receives a request and payment for service from a third party (someone other than the client or SDM) to assess a client, evaluate a proposed service plan, or to provide treatment. Referrals from third party payers or requests for independent evaluations often occur for employment, legal, financial, or insurance reasons. The OT performing the role on behalf of a third party payer is expected to be objective, impartial, fair and transparent throughout the service delivery and is accountable to ensure informed consent has been obtained prior to intervening with a client.

Although the referring third party may have the authority to oblige a person to participate in specific processes or evaluations, the OT is expected to obtain informed consent from the client for the specific OT services being proposed (assessment, treatment or consultation) and knowledgeable consent for the collection, use and disclosure of any personal health information associated with the OT services. Where the OT has not been identified as the party responsible for the management of personal health information contained in specific reports, the OT should ensure the client is aware of the expectations for requesting access, disclosure or non-disclosure as part of the informed consent process. The consent requirements for OT services in the context of third party payers are consistent with the consent requirements for OT services performed in any other practice context.

When there is a request for the OT to review additional information, such as medical reports or surveillance material, about the client after the in-person service (evaluation) has occurred, the OT is expected to obtain the client’s consent prior to using the material if this information was not explicitly addressed during the initial consent process. Whenever possible, the OT should review the additional material with the client to allow the client an opportunity to respond and to put the additional information into context. The process for how the material will be reviewed is at the discretion of the OT. In some cases, the OT may determine that they are not in a position to review the additional information.

File reviews, also known as paper-based reviews, where the OT has no direct contact with the client as part of the evaluation and reporting process, do not require the OT to obtain informed consent from the person whose file is being reviewed. The OT should clearly document the format of the evaluation and any potential limitations associated with the file review process.

Standard 7

The OT will ensure informed consent is obtained from the client or SDM for occupational therapy services (including independent evaluations) delivered at the request of a third party payer and that knowledgeable consent is obtained for the collection, use and disclosure of personal health information associated with the service delivery.

      Performance Indicators

Consent for all aspects of occupational therapy service delivery should be documented in a timely manner after the consent process has occurred with the client or SDM. Documentation of consent may refer to a specific service or to a plan of care. Consent should be obtained and documented again, if any changes are made over the course of occupational therapy service delivery.

The OT will consider the level of risk associated with the service within the context of their practice to determine the frequency of documentation required regarding consent.

A signed consent form does not necessarily indicate informed consent has been obtained. Consent forms should not be a substitute for the oral or alternate communication process. Forms can be used to augment the process and offer a standard method of obtaining consent from each client. The existence of a policy or protocol describing the process for obtaining consent may address some of the documentation requirements.

Standard 8

The OT will document the receipt, refusal or withdrawal of consent for occupational therapy service delivery and the collection, use and disclosure of personal health information.

      Performance Indicators

When a health care practitioner is proposing a service, and is of the opinion that the person is not capable of making a decision about assessment, treatment, admission to a care facility, or personal assistance, consent must be obtained from a substitute decision-maker (SDM) unless the circumstances warrant urgent intervention.

In most situations, a SDM does not have to be appointed by the courts. However, the SDM must be at least 16 years old, unless the SDM is the parent of the individual. The SDM must also be capable, himself or herself, to give consent. The Health Care Consent Act, 1996 provides a hierarchy of persons who can provide substitute consent. Generally, the practitioner must obtain consent from the highest-ranking available and willing substitute unless a lower-ranking substitute is present and believes that the higher-ranking substitute would not object. Where a substitute decision-maker from the first three on the hierarchy is available and willing to make the decision, then he or she must be used.

The hierarchy of individuals who may give or refuse consent on an incapable person’s behalf ranked highest to lowest:

1. Guardian of the person appointed by the courts, if the person has the authority to give or refuse consent to treatment;
2. Attorney for personal care conferred by a written form when the client was capable;
3. Representative appointed by the Consent and Capacity Board;
4. Spouse or partner;
5. Child or parent (custodial parent if the child is a minor);
6. Parent of the incapable person who has only a right of access;
7. Brother or sister;
8. Any other relative;
9. Public Guardian and Trustee.

Attorney for Personal Care	A power of attorney that deals with the issue of personal care given under the Substitute Decisions Act, 1992 (SDA).
Capacity	A person is capable with respect to an intervention if the person is able to understand the information relevant to making a decision about the matter and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. People: are presumed capable unless there is information to lead the OT to think otherwise; may be capable with respect to one intervention/decision but not another; and may be capable with respect to an intervention/decision at one time and incapable at another. (Health Care Consent Act, 1996)
Capacity Assessor	Someone who is qualified and designated by the Ontario Ministry of the Attorney General to determine whether an individual is mentally incapable of certain types of decision-making as described in the Substitute Decisions Act. In some circumstances, the Substitute Decisions Act gives capacity assessors the exclusive authority to make such determinations.
Circle of Care	A term of reference used to describe health information custodians and their authorized agents who are permitted to rely on an individual’s implied consent when collecting, using, or disclosing personal health information for the purpose of providing health care or assisting in providing health care.
Component	A discrete part or entity of a plan of intervention, contributing to the whole plan.
Consent	The agreement of the client to a service. To be valid, consent must be informed, must relate to the proposed service, must be given voluntarily and must not be obtained through misrepresentation or fraud.
Consent and Capacity Board	Established by, accountable to, and appointed by the government. The Board considers applications for review of findings of incapacity, applications relating to the appointment of a representative (e.g. SDM), and applications for direction regarding the best interests and wishes of an incapable person.
Course of Intervention	A series or sequence of related interventions administered to a person over a period of time for a particular health issue.
Express Consent	Express consent for intervention or for the collection, use or disclosure of personal health information by an OT and/or Health Information Custodian is explicit and direct, and may be given verbally, in writing or by electronic means.
Guardian of the Person	Under the Substitute Decisions Act, 1992, a guardian of the person is appointed by the Court for a person who is incapable of personal care and, as a result, needs decisions to be made on his or her behalf by a person who is authorized to do so.
Implied Consent	In relation to service, implied consent is inferred from the words or behavior of the patient, or surrounding circumstances, such that a reasonable person would believe that consent for the service has been given, although no direct, explicit words of agreement have been given. Although the HCCA states that consent to treatment may be express or implied, the College advises OTs to obtain express consent. In relation to health information, implied consent permits a health information custodian to infer from the surrounding circumstances that an individual would reasonably agree to the collection, use or disclosure of his/her personal health information.
Informed Consent	Consent is informed if, before voluntarily agreeing to the service, the person making the intervention decision received the information that a reasonable person in the same circumstances would require in order to make a decision about the intervention. This information would also include responses to requests for additional information, including information about the nature, benefits, material risks, and side effects of the intervention, alternative courses of action, and the likely consequences of not having the intervention. The informed consent must be obtained, recorded, dated, and maintained as part of the client record.
Service	Includes all aspects of occupational therapy including assessment, treatment and consultation for which an OT must obtain informed consent.
Knowledgeable Consent	According to PHIPA, “consent to the collection, use or disclosure of personal health information about an individual is knowledgeable if it is reasonable in the circumstances to believe that the individual knows, (a) the purposes of the collection, use or disclosure, as the case may be; and  (b) that the individual may give or withhold consent. 2004, c. 3, Sched. A, s. 18 (5)”.
Partner/Spouse	According to the HCCA two persons are spouses for the purpose of consent to treatment if, (a) they are married to each other; or (b) they are living in a conjugal relationship outside marriage and, i. have cohabited for at least one year, ii. are together the parents of a child, or iii. have together entered into a cohabitation agreement under section 53 of the Family Law Act.
Power of Attorney (POA)	A legal document that gives someone else the right to act on your behalf. A Power of Attorney for Personal Care is a legal document in which one person gives another person the authority to make personal care decisions on their behalf if they become mentally incapable.
Public Guardian and Trustee, (PGT)	The PGT is the SDM of last resort for a mentally incapable person. Under the amendments to the Substitute Decisions Act,1992 the court will not appoint the PGT as guardian of property or guardian of the person unless there is no other suitable person available and willing to be appointed.
Relative	A person related by blood, marriage, or adoption.
Substitute Decision-Maker (SDM)	A person who makes decisions for someone who is incapable of making their own decisions, and who is authorized to give or refuse consent to an intervention on behalf of a person who is incapable with respect to the intervention. In most cases this will be a family member or partner. In others, this may be an individual specifically selected by the client, or appointed by the Court, the Board or Public Guardian and Trustee Office. See Appendix.

1. College of Occupational Therapists of Ontario (2012). Conscious Decision-Making in Occupational Therapy Practice. Toronto, ON.
2. College of Occupational Therapists of Ontario (2008). Prescribed Regulatory Education Program: Consent. Toronto, ON.
3. College of Occupational Therapists of Ontario (2014). Prescribed Regulatory Education Program: Privacy & Confidentiality. Toronto, ON.
4. College of Occupational Therapists of Ontario (2013). Standards for Occupational Therapy Assessments. Toronto, ON.
5. College of Occupational Therapists of Ontario (2016). Standards for Record Keeping. Toronto, ON.
6. Health Canada (2016). Science and Research: Requirements for Informed Consent Documents. Retrieved from http://www.hc-sc.gc.ca/sr-sr/advice-avis/reb-cer/consent/index-eng.php September 24, 2016.