The Health Care Consent Act (HCCA) was passed in Ontario in 1996 and is legislation that deals with the capacity to consent to medical treatment.
The HCCA makes it clear that a person has the right to consent to or refuse treatment if they have mental capacity. That means that the patient must be able to understand and appreciate the consequences of their treatment decision. That means informed consent.
In order to demonstrate informed consent, the patient must be capable of understanding the proposed or recommended treatment and the associated risks and benefits. That requires that the patient is able to understand the information that is relevant to making a decision about the treatment and be able to appreciate the reasonably foreseeable consequences of their decision.
The HCCA is different from Ontario’s Mental Health Act (MHA). The MHA deals with detention and treatment within a psychiatric facility while the HCCA governs the ability to treat a patient within a hospital.
Where a patient lacks the capacity to consent or understand (lack of capacity for personal care) they will require a substitute decision-maker (SDM). That process is governed by the Substitute Decisions Act (SDA) to make decisions on their behalf relating to treatment and medication.
The Supreme Court of Canada (SCC) dealt with the HCCA in its decision in Starson v. Swayze (2003) dealt with the right of a mentally ill person to refuse treatment, even when it is in their best interests to be treated. In the case, the respondent had been in and out of mental health facilities across North America and had been diagnosed with bipolar disorder. He had been admitted to a hospital after being found not criminally responsible for uttering death threats. His physicians recommended treatment involving multiple types of medication, and the patient refused to consent. His treating physician found that he was incapable of making this decision. The respondent applied to the Ontario Consent and Capacity Board for a review of the doctor's decision but was unsuccessful.
However, he sought judicial review of the decision by the Superior Court of Justice, which overturned the doctor's determination. The case eventually made its way to the Supreme Court, which found:
The Health Care Consent Act, 1996, presumes a person is capable to decide to accept or reject medical treatment; therefore, patients with mental disorders are presumptively entitled to make their own treatment decisions. The presumption of capacity can be displaced only by evidence that a patient lacks the requisite elements of capacity provided by the Act. Capacity involves two criteria: first, a person must be able to understand the information that is relevant to making a treatment decision and second, a person must be able to appreciate the reasonably foreseeable consequences of the decision or lack of one.
The SCC found that the Board had failed to properly apply the capacity criteria, and therefore failed to establish that the patient lacked capacity to understand the effects and risks of the proposed treatment. Clearly, where the presumption is that of capacity, the test to demonstrate that capacity is lacking must be carefully applied and assessed, which in this case did not occur.
When a question around capacity arises with respect to a patient who is refusing medical treatment, physicians and hospitals need to keep in mind the presumption of capacity. If it is suspected that a patient does not properly understand the consequences of their decisions, all proper channels need to be explored and the patient's capacity must be fully assessed under the legislative standard. Overriding an individual's wishes when it comes to medical treatment is a serious step to take, and so all providers involved need to proceed cautiously.
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The Chief Medical Officer of Health for Ontario has issued an updated Directive #2 (dated May 26, 2020) for Regulated Health Professionals in the province.
Pursuant to the updated Directive #2, all deferred non-essential and elective services by health care providers may be gradually restarted – subject to the rest of the requirements set out in the Directive.
The updated Directive #2 does not provide particularly detailed guidance to health professionals on how to proceed, likely because it applies to such a broad spectrum of health care and health professionals. It does, however, provide some principles to assist health care providers in making decisions as we enter this transitional period.
In addition to the mask and hand sanitizer shortages, Ontario’s response to COVID-19 highlights the need for more frontline health care workers. Each regulated health profession’s college responded differently, and we have discussed some of those changes in other posts to keep you apprised.
Today, we focus on the College of Physicians and Surgeons of Ontario (CPSO), who set out to increase the number of available and licenced physicians out on the frontlines through certificates of registration that authorize supervised practice of short duration. The temporary licences authorize practice for 30 days.
Undoubtedly, COVID-19 has affected how health professionals practice. Pharmacists across the country are not only experiencing changes in how they practice (for example, accepting emailed prescriptions, where appropriate) but the scope of their practice as well. The latter change is not permanent, although the disruptions in practice may be felt long after the COVID-19 emergency subsides.
On March 19, 2020, Health Canada issued a short-term section 56(1) exemption under the Controlled Drugs and Substances Act (CDSA) that would authorize pharmacists to prescribe, sell, or provide controlled substances in limited circumstances, or transfer prescriptions for controlled substances (the CDSA Exemption).