Consent and Capacity

1. Consent and Capacity LMCC Part 1 preparation Tabitha Rogers MD, MSW PGY 2 Psychiatry

2. Objectives • To review the different types of consent. • To review the criteria for informed consent. • To discuss the roles of the: • Health Care and Consent Act • Substitute Decisions Makers Act • Mental Health Act • To discuss the role of Substitute decision makers and Power of Attorneys

3. Types of Consent • Implied • Expressed: oral or written It should be obtained when the treatment is likely to be more than mildly painful, when it carries appreciable risk, or when it will result in ablation of a bodily function.

4. You are going to remove someone’s appendix what type of consent should you get? Implied or Expressed

5. A mother brings her two year old daughter to you for her annual check-up. What type of consent do you get? Implied or Expressed

6. Elements of Consent • Consent must relate to the treatment • Consent must be informed • Consent must be given voluntarily • Consent must not be obtained through misrepresentation or fraud.

7. Elements of Consent • Consent must relate to the treatment • Consent must be informed • This implies that the person giving consent must be CAPABLE of giving consent. • Consent must be given voluntarily • Consent must not be obtained through misrepresentation or fraud.

8. Requirements for Informed Consent • The patient must have been properly informed. • The patient must have the capacity to consent • The patient must be able to understand the nature and anticipated effect of proposed medical treatment and alternatives, and to appreciate the consequences of refusing treatment.

9. Presumption of Capacity • The patient is presumed to be capable with respect to treatment • There is no age of capacity in Ontario. • Health practitioners may rely on the presumption of capacity unless they have reasonable grounds to believe that a person is incapable with respect to the treatment.

10. Who is capable A person is capable with respect to a treatment if the person is: • able to understand the information that is relevant to making a decision about the treatment, AND • able to appreciate the reasonably foreseeable consequences of a decision or lack of decision

11. Evaluating Capacity Capacity depends on treatment A person may be incapable with respect to one treatment and capable with respect to another. Capacity depends on time A person may be incapable at one time and capable at another.

12. Who assesses capacity for treatment? • The health practitioner proposing the treatment must assess whether the individual is capable of giving consent

13. Elements of Consent • Consent must relate to the treatment • Consent must be informed • Consent must be given voluntarily • Consent must not be obtained through misrepresentation or fraud.

14. A consent is informed if the patient receives the information that a reasonable person in the same circumstances would require about: • The nature of the treatment • The expected benefits • Material risks & side effects • Alternative courses of action • The likely consequences of not having the treatment

15. Case • Sara is 14 and has come to your clinic requesting the birth control pill. What do you do?

16. Age of Consent • Only in the province of Quebec has an established age of 14 years been assigned to Capacity to Consent. Below which consent of the parent /guardian or the court is necessary for the purposes of treatment. • All other provinces rely on the maturity of the individual in assessing capacity to consent to treatment.

17. Case Danny is a 37 y.o. man who is developmentally delayed and lives in a group home. He has come to you as his family doctor and you discover he has pneumonia and you prescribe an antibiotic. One week later the radiologist suggests that there is a tumor in the RLL on the CXR. You suggest to Danny he needs a biopsy and possible treatment. Danny says he doesn’t like needles and says he won’t have the biopsy.

18. Is Danny Capable of Consenting to Treatment?

19. Evaluating Capacity Capacity depends on treatment A person may be incapable with respect to one treatment and capable with respect to another.

20. Danny has been on antibiotics before and he knows that they treat a “bug” in his lungs and he will feel better. He also knows that antibiotics can cause his tummy to feel bad, and that sometimes they make him “poop” too much. He knows that if he doesn’t take the antibiotics he won’t feel better and he may get worse.

21. Danny does not understand what a biopsy means and what a tumor is. Despite your attempts to educate Danny about these issues, he is still unable to understand and appreciate the nature of his illness. • You now need to find an alternative decision maker (we will talk about this a little later)

22. Which Act describes Informed Consent • Health Care and Consent Act • Substitute Decisions Act • Mental Health Act • Personal Health Information Protection Act

23. Which Act describes Informed Consent • Health Care and Consent Act • Substitute Decisions Act • Mental Health Act • Personal Health Information Protection Act

24. In what area can you treat a patient without informed consent?

25. In what area can you treat a patient without informed consent? • Emergency Situation

26. Emergency treatment The general rule is that consent must always be obtained before any treatment is administered, there is an important exception. In cases of medical emergency when the patient (or substitute decision maker) is unable to consent, a physician has the duty to do what is immediately necessary without consent. For the physician to declare any clinical situation an emergency in which consent is not required, there must be demonstrable severe suffering or an imminent threat to the life or health of the patient.

27. Competency vs Capacity • Competency suggests all or nothing. • Capacity implies varying levels of ability on a variety of decision making tasks • The primary issue in evaluating capacity to make a choice should be the process of making the decision and not the decisions itself.

28. What happens if you treat a patient without Consent?

29. You can be charged with Assault and Battery

30. What do you do when the patient cannot provide consent? • Consider: Substitute Decision Maker (SDM) vs. Power of Attorney (POA)

31. Who is the SDM • The law chooses the substitute decision-maker (Health Care Consent Act)– the health care provider identifies them.

32. Who is the SDM • A Court appointed Guardian of the person • Power of Attorney • Spouse/Partner • Parent/child • Sibling • Any other relative by blood, marriage or adoption • The Public Guardian and Trustee if: • There is no one else for the job, OR • No one else wants the job, OR • Two or more potential substitutes of the equal (and highest) ranking claim the job but disagree as to the decision

33. Power of Attorney A Power of Attorney (POA) is a written document. In it you give someone the authority to act for you in relation to your property, financial affairs and/or personal care.

34. Who is the SDM • A Court appointed Guardian of the person • Power of Attorney • Spouse/Partner • Parent/child • Sibling • Any other relative by blood, marriage or adoption • The Public Guardian and Trustee if: • There is no one else for the job, OR • No one else wants the job, OR • Two or more potential substitutes of the equal (and highest) ranking claim the job but disagree as to the decision

35. Substitute decision-makers must follow a strict set of rules that tell them how to make decisions. They are to make decisions in the best interests of the patient and that are in keeping with the patient’s prior wishes.

36. Prior wishes • if expressed when the person was at least 16. • if it is the person’s most recent capable wish. • if it is relevant in the circumstances. • if it is not impossible to comply with Wishes may be written/verbal/expressed in any other manner.

37. Case • Elsie is a 72 y.o. Woman with long standing history of recurrent Major Depression. She has become depressed over the past 6 months and she has been admitted to hospital as she is now catatonic. The treating psychiatrist feels Elsie should receive a course of ECT and he has asked the SDM to provide consent.

38. Elsie is widowed, and she has no children. Her brother Ed is living in Toronto, and her sister Martha is in LTC and is suffering from Dementia. Her Nephew Phil lives in Ottawa. • Who do you ask to make treatment decisions?

39. Elsie has told her brother in the past that she would never have ECT. She did not like the idea of Shock Treatments and she believed they caused the death of her mother Mildred.

40. What should Ed do? What do you do?

41. We know that: • Consent must be Informed • A SDM or POA can make decisions on a person’s behalf if they are incapable of consenting. • The SDM or POA must respect a person’s prior wishes whether written or not.

42. Case • Bill is a 54 y.o. Unemployed gentleman who is living on the street and has an addiction to Alcohol. He comes to the ER with an alcohol level of 68 mmol/L. He is known to have Hepatitis C and his liver functions and worsening with an increase in his enzymes and INR. • He is refusing all treatment and after he sobers up, he wants to leave the ER.

43. What do you do?

44. Capable people can make decisions for themselves even if their decision is foolish

45. What if Bill has Schizophrenia and he is off his medication. While in the ER he says he is going to kill his landlord.

46. What do you do?

47. If you believe Bill has a Mental Illness that requires further assessment you can complete a Form 1. • Can you treat Bill if he refuses to take medication?

48. Conclusions • Consent must be made by a capable person who is informed about the treatment. • Consent is specific to the treatment. • If the person cannot consent then you look for a SDM or a POA. • On deciding on an SDM, you must follow the hierarchy of decision makers listed in the Substitute Decisions Act. • A Form 1, 3, or 4 does not allow you to treat a person against their will. • Remember Hippocrates: Do no harm.

49. Conclusion • Health Care and Consent Act  Consent • Substitute Decisions Act  SDM or POA • Mental Health Act  Form 1, 2, 3, 4 etc...

50. Questions? • Tabitha Rogers • troge015@uottawa.ca