New CPSO Policy on Consent to Treatment
The CPSO recently approved a new Consent to Treatment Policy (“Policy”) and accompanying Advice to the Profession (“Advice”). Here are some important points of interest for physicians and organizations who employ or work with physicians:
When express consent is required: Physicians must obtain express consent from patients when the treatment involves:
a. an examination involving intimate areas of the body;
b. appreciable risk;
c. a surgical procedure or an invasive investigative procedure; or
d. significant changes in consciousness.
When documenting consent is required: Physicians must document information about consent to treatment in the patient’s medical records when the treatment involves:
a. appreciable risk;
b. a surgical procedure or an invasive investigative procedure; or
c. significant changes in consciousness.
Using Family Members or Friends as Language Interpreters: While using a family member as an interpreter will sometimes be appropriate and in the patient’s best interests, this practice can also present challenges including difficulty understanding medical terms, inter-family dynamics or conflict, and important information being inadvertently or intentionally admitted. For higher risk or complex treatments, physicians should consider using a formal third-party interpretation service, where available.
Using Technology for Language Interpretation: Using technology for translation (e.g. Google Translate) may pose risks in relation to reliability and patient privacy. Physicians are encouraged to consider these issues before using a language interpretation technology.
Incapable Patients: When patients are not capable of providing consent, consent must be obtained from a Substitute Decision Maker (“SDM”). However, physicians are encouraged to continue to involve incapable patients in consent discussions whenever it is feasible and appropriate to do so.
Duty to Assist SDMs: Physicians are required to assist SDMs in understanding their legal obligations under the Health Care Consent Act, where it appears that the SDM is not familiar with what these obligations entail. The Advice recommends the use of SDM resources, such as a guidance document prepared by Hamilton Health Sciences.
Patients Unwilling to Have Informed Consent Discussion: Capable patients may ask a physician to seek consent from a family member, or to proceed with treatment without discussing the risks. The Advice states that it is not appropriate for physicians to acquiesce to these types of a request. The Health Care Consent Act requires that a capable person consent to their own treatment, and such consent be informed. When patients are resistant to having an informed consent discussion, physicians are encouraged to sensitively explain the requirements to the patient, consider giving the patient time to process the information where feasible, and involve friends and family to provide support to the patient.
The revised Policy and Advice provides some helpful guidance for physicians on some sticky practice points around informed consent. If you have any questions or would like advice on compliance with the CPSO requirements, please contact us.
