Overview for Health Care Providers - Capacity & Consent

Capacity: A person in incapable of giving or refusing consent to care or medical treatment if he/she is not able to understand the information relevant to the decision or if he/she is not able to appreciate the reasonably foreseeable consequences of such a decision. The health care professional proposing the treatment course of action assesses capacity. (1)

Consent has many elements such as lack of coercion, given by patient or legally authorized substitute decision maker, a reference to the particular administrator and treatment, and comes with full disclosure (e.g. risks, benefits, side effects, alternatives).(1)

Why is it important?

  • The Health Care Consent Act (HCCA) is an Ontario law based on capacity to consent; it governs health practitioners, including physicians (2)
  • Ontario HCCA is also relevant to the Ontario Substitute Decisions Act- a person found to lack capacity for personal care would need a substitute decision maker (3)

Common Causes

  • 73 % of Canadians die from complex chronic diseases and some will be lack capacity; for example, progressive dementing illnesses will affect the person’s decision-making ability at some point (1) (4)

Key Considerations

  • A person will be able to appreciate the consequences of the decision if the following occurs: (1)
    • Acknowledges that the condition for which treatment is being recommended can affect him/her
    • Understands how proposed action, or lack of action, can effect quality of life
    • Explain why he/she is making a decision in a way that aligns with previously expressed values (e.g. realistic expectations, can communicate choice, can manipulate information rationally (4)
  • If the person is found incapable to consent, he/she must be advised of  legal rights (unless in emergency situations)and the health professional must follow procedures developed by the professional governing body
  • The health professional must also notify the patient that a substitute decision maker will assist in the understanding of treatment and be responsible for final decisions (4)
  • Health professional should still involve the incapable person to the greatest extent possible (4)
  • If patient disagrees with current substitute decision maker, the physician must advice the patient of his/her options and assist in either finding another substitute decision maker or applying to the Consent and Capacity Board for a review of the finding of incapacity (4)
  • If a substitute decision maker does not exist, the physician should contact the Public Guardian and Trustee
  • If a health professional does not believe the substitute decision maker is acting in the best interest of the patient or according to patient’s prior wishes, then he or she can request a hearing with the Consent and Capacity Board (4)
  • For more information on determining capacity and consent, please consult the following guide for physicians:
    http://www.cpso.on.ca/uploadedFiles/policies/policies/policyitems/capacity_consent_july07dialogue.pdf
  • Health care professionals can also consult OHA’s Practical Guide to Mental Health and the Law in Ontario:
    http://www.oha.com/KnowledgeCentre/Library/Toolkits/Documents/Final
  • NICE also provides a tool on Capacity and Consent, Ontario Edition at:
    http://www.nice-tools.ca/files/Capacity.pdf

References

1.      Canadian Hospice Palliative Care Association. (2012). Advance Care Planning in Canada: National
         Framework
. (2011). Retrieved March 17, 2014 


2.      Service Ontario. (2010). Health Care Consent Act, 1996. Retrieved March 17, 2014 from:
         http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_96h02_e.htm\ServiceOntario_e.htm

3.      ServiceOntario. (2011). Substitute Decisions Act, 1992. Retrieved March 17, 2014 from:
         https://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_92s30_e.htm

4.      The College of Physicians and Surgeons of Ontario. (2007). Determining capacity to consent
         Retrieved March 17, 2014 from: 
         http://www.cpso.on.ca/uploadedFiles/policies/policies/policyitems/capacity_consent_july07dialogue.pdf

Resource Type - Type de Ressources: 
Author/Publisher - Auteur/Éditeur: 
Centre for Studies in Aging and Health
Date Published: 
2014-01