Once the treatment has been ordered, an RT must decide if consent has been obtained or if they need to obtain consent before proceeding. In some situations, RTs may find themselves needing to determine whether or not a patient/client is in fact capable to consent to a treatment, and what to do if they suspect the patient is incapable.
There are many underlying – and sometimes ethical – principles involved in obtaining consent and determining a person’s capacity to consent. One of the first principles to remember is the presumption of capacity. The HCCA states:
“A person is presumed to be capable with respect to treatment, admission to or confining in a care facility and personal assistance services.” and
“A person is entitled to rely on the presumption of capacity with respect to another person unless he or she has reasonable grounds to believe that the other person is incapable with respect to the treatment”.
[HCCA 2017, c. 25, Sched. 5, s.56.]
In other words, patients/clients are presumed capable unless, in your professional judgement, you have reasonable grounds to believe that they are incapable of consenting to the treatment or treatment plan you are proposing. The HCCA clearly states “no treatment without consent”. If you believe your patient/client to be incapable, the next step is to find a substitute decision maker.
Capacity Depends on the Treatment
A person may be incapable with respect to some treatments and capable with respect to others. [HCCA 1996, c. 2, Sched. A, s. 15 (1)]
Capacity Depends on Time
A person may be incapable with respect to a treatment at one time and capable at another. [HCCA 1996, c. 2, Sched. A, s. 15 (2)]
The HCCA states that “a person may, while capable, express wishes with respect to treatment, admission to or confining in a care facility or a personal assistance service” [HCCA 2017, Sched. 5, s.57]. Expressed wishes must be followed even if the patient/client subsequently becomes incapable.
- A COPD patient presenting to the Emergency Department with COPD exacerbation may be capable to consent to an ABG and the administration of oxygen, but may not understand the complexities of intubation.
- The patient with COPD exacerbation may have been able to consent to an ABG when they arrived in the ED but may lose the capacity to consent as their condition worsens, with evidence of impending respiratory failure.
- With the administration of oxygen, the condition of the patient with COPD exacerbation improves. The hypoxemia is corrected and in your professional judgement, their capacity to consent has returned. You are very concerned that this patient may require intubation.
What do you do?
In this case, the RT has made a professional judgement that their patient presenting with COPD exacerbation is capable, but does not understand the treatment – intubation. In addition, the patient’s condition is unstable and their capacity to consent is dependent on their condition at any given time. In order to act in the best interest of the patient, the RT is obligated to seek help from the most responsible physician (and/or other members of the health care team) to discuss their clinical recommendations and findings of capacity. It may be necessary to seek consent from a Substitute Decision Maker (SDM) or to appoint an SDM for the patient. There is also a need to discuss the treatment of intubation with the patient or SDM to ensure that the treatment is understood, and informed consent for treatment (or withholding of treatment) has been received. Finally, it may be an opportune time to discuss the patient’s wishes with the patient or SDM surrounding intubation and end of life decision-making.
Attorney for personal care: An attorney under a power of attorney for personal care given under the Substitute Decisions Act.
Consent and Capacity (the board): A board established by and accountable to the government. Its members are appointed by the government. The Board considers applications for review of findings of incapacity, applications relating to the appointment of a representative, and applications for direction regarding the best interests and wishes of an incapable person.
Capable: Means mentally capable; a person is capable if they are able to understand the information that is relevant to making a decision about the treatment and are able to appreciate the reasonable foreseeable consequences of a decision or lack of decision — capacity has a corresponding meaning.
College: College of Respiratory Therapists of Ontario.
CRTO: College of Respiratory Therapists of Ontario.
Emergency: When the person for whom the treatment is proposed is apparently experiencing severe suffering or is at risk, if the treatment is not administered promptly, of sustaining serious bodily harm.
Guardian of the Person: A guardian of the person appointed under the Substitute Decisions Act.
HPPC: Health Professions Procedural Code — Schedule 2 of the Regulated Health Professions Act.
Incapable: Mentally incapable with incapacity having a corresponding meaning.
Partners: Individuals who have lived together for at least one year and have a close personal relationship that is of primary importance in both lives.
Plan of Treatment: A plan that:
- is developed by one or more health practitioners
- deals with one or more health problems that an individual has, and may deal with one or more problems an individual is likely to have in the future given their current health
- allows for administration of various treatments or courses of treatment.
Relatives: Related by blood, marriage or adoption.
Respiratory Care: Equivalent to Respiratory Therapy.
Respiratory Therapist (RT): A Member of the CRTO and includes Registered Respiratory Therapists (RRT), Practical (limited) Respiratory Therapist (PRT) or Graduate Respiratory Therapists (GRT).
Spouses: Individuals who are married to each other, or who are living in a conjugal relationship and have lived together for at least one year, have a cohabitation agreement or are the parents (together) of a child. Individuals living apart and separate are not spouses.
Treatment: Means anything that is done for a therapeutic, preventative, palliative, diagnostic, cosmetic or other health-related purpose, and includes a course of treatment or plan of treatment, but does not include:
- assessment of a person’s capacity
- assessment or examination to determine the general nature of an individual’s condition
- taking a health history
- communicating an assessment or diagnosis
- admission to a hospital or other facility
- a personal assistance service
- a treatment that, in the circumstances, poses little or no risk of harm
- College of Nurses of Ontario (2017). Practice Guideline: Consent. Retrieved from: https://www.cno.org/globalassets/docs/policy/41020_consent.pdf (cno.org)
- Health Care Consent Act (1996). Retrieved from: Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A (ontario.ca)
- Health Protection and Procedure Act (1990). Retrieved from: R.R.O. 1990, Reg. 569: REPORTS (ontario.ca)
- Regulated Health Professions Act, 1991, S.O. 1991, c. 18. Retrieved from: Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (ontario.ca)