Elements of Consent
Once you have determined that your patient is capable to consent to treatment, you must ensure that the four elements of consent are achieved.
The following are the elements required for consent to treatment:
1. Consent must relate to the treatment.
2. Consent must be informed.
3. Consent must be voluntary.
4. Consent must not be obtained through misrepresentation or fraud
[HCCA 1996, s. 11].
Informed consent is based on the concept that every person has the right to determine what will be done to their body. This is the principle of autonomy. Informed consent means that the information relating to the treatment must be received and understood by the patient/client. This may include communication other than speaking. For example, a patient/client with a hearing impairment may need the information provided in writing or by sign language. When a language barrier exists, an interpreter may be needed. It is your responsibility to meet your patient’s/client’s communication needs to the best of your ability. Using plain language in your explanation of the treatment is one way to facilitate understanding and appreciation of the information relayed.
Consent is informed if:
the person received information about the treatment or procedure that a reasonable person in the same circumstances would require in order to make a decision about the treatment, including:
the nature of the treatment;
the expected benefits of the treatment;
the material risks of the treatment;
the material side effects of the treatment;
alternative courses of action;
the likely consequences of not having the treatment, and
the person received answers to any questions they had about the treatment.
[HCCA 1996, s. 11]
Implied and Expressed Consent
Consent may also be implied or expressed.
Implied consent is determined by the actions of the patient/client. Implied consent may be inferred when you are performing a procedure with minimal risk that the patient/client has consented to previously and acts in a manner that implies their consent. For example, if you inform your patient/client that you would like to auscultate their chest and they unbutton their shirt, it may be reasonable to infer that they consent. If you have any doubt at all, you must ensure that the patient/client or their representative consents.
Expressed consent is more official and may be written or oral. For example, having a signed consent form or, having the patient consent to treatment verbally in front of another health care provider are expressed forms of consent. Unless circumstances dictate otherwise, you may presume that consent to a treatment includes consent to a variation in that treatment, provided that the nature, expected outcome, risks and side effects are not significantly different from the original proposed treatment. This presumption is also appropriate where the treatment is being continued in a different location and there remains no significant changes in the expected benefits, risks, or side effects [HCCA, section 12].
It is important to remember that consent may be withdrawn at any time and depends on the context of the situation (nature of the treatment, time and place) and the patient’s/client’s capacity to consent.
If you have reasonable grounds to believe your patient/client is incapable of giving informed consent you will have to obtain informed consent from a Substitute Decision Maker (SDM). (Please refer to the section on Substitute Decision Makers.)
RTs who are unsure whether or not a patient/client is capable to consent should seek assistance, likely from the prescriber of the treatment. Your employer may set out additional policies and procedures to direct your conduct in circumstances where you believe the patient/client is not capable of giving or withholding consent. Where those policies and procedures require you to refer your concerns to a physician or other health care professional then you may defer the finding of incapacity to that health care provider.
Age of Consent
The HCCA does not identify an age at which an individual may give or withhold consent. This is because the capacity to make independent health care decisions is not dependent on age, but more on the ability to understand the relative risks and benefits of a proposed plan of care. As is outlined in the Child and Family Services Act, “consent is an informed process and the patient needs to be able to understand the foreseeable risk of treatment”. Therefore, a determination of capacity must be made for minor children and young adolescents in the same manner as it would be for an adult.
A patient has just been discharged from hospital to home with an order for oxygen. The RT working for the home care company will see the patient in their home to do the set up. The patient is confused and disoriented and does not understand why the RT is in their home or the reason for the oxygen. The RT attempts to explain the equipment, but the patient is not receptive. At this time, it is uncertain if the patient provided informed consent for home oxygen while in hospital. The patient lives alone, has a wood fireplace and a gas stove, and it becomes clear that this is not a safe environment.
The RT shares their concerns with the patient and asks if they have family or friends nearby to help. The patient states they have no family living in the country. The RT contacts the hospital and learns that the home care nurse will not see the patient until tomorrow and you are unsuccessful in reaching the patient’s physician. What is the best course of action for the RT at this point?
What do you do?
In this scenario, the RT has taken all of the right steps to consider the welfare of the patient/client above all else (Standard 14: Safety and Risk Management). They have deemed the client incapable of providing informed consent, informed the patient of their findings, has attempted to contact an SDM and has attempted to engage the health care team for assistance in determining capacity and consent. RTs are not authorized to perform official capacity evaluations or assessments under the HCCA or SDA respectively. At this time, the best actions for the RT would be to either ensure contact with the ordering/MRP before leaving to arrange an alternate treatment plan or to arrange for the client to return to the hospital from which they had been discharged. It may be a difficult decision and action to take but the RT is ultimately accountable to acting in the best interest of the patient/client. For more information on ethical decision making, please see please see A Commitment to Ethical Practice.
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)