The Health Care Consent Act and Minors

The recentASP v HPARB case out of the Divisional Court provides important reminders for healthcare providers treating children.

The case arose factually out of a visit by a 7-year old Indigenous girl to an emergency department with a complaint of painful urination.  The girl’s parents accompanied her.  According to the parents’ complaint to the College of Physicians and Surgeons of Ontario (“CPSO”), the ER doctor conducted a vaginal examination over the repeated objections of their daughter and before completing the less intrusive step of checking their daughter’s urine for a UTI.

The ER doctor’s response to the complaint was that she thought she had “implied consent” to conduct the examination because the girl’s mother had encouraged her daughter to permit the doctor to examine her.

The Inquiries, Complaints and Reports Committee (“ICRC”) of the CPSO accepted a remedial agreement from the ER doctor that included demonstrated learning and self-reflection on the need to respect the wishes of minors.

The parents then sought review of the ICRC decision to the Health Professions Appeal and Review Board (“HPARB”).  On review, HPARB found that the investigation of the ICRC had been inadequate and sent the complaint back to the ICRC for further investigation.

In the course of the re-investigation, the girl’s parents squarely raised the issue of consent, and alleged that the ER doctor had conducted the vaginal exam without their daughter’s consent and in violation of theHealth Care Consent Act.

In its second decision, the ICRC of the CPSO again issued advice to the ER doctor but took no further action.

The parents again sought review of the decision of the ICRC to HPARB, on the basis that its decision relating to consent was unreasonable.

HPARB upheld the decision of the CPSO, finding that the ICRC had reasonably addressed the issue of consent, based on the evidence of the girl’s mother having cooperated with the physical examination.  On that basis, the ER doctor believed she had implied consent to proceed.

The parents then sought judicial review to the Divisional Court on whether HPARB’s decision to uphold the ICRC’s treatment of the issue of consent was reasonable.

The Divisional Court reviewed the relevant provisions of theHealth Care Consent Act and highlighted the following:

• Health care providers must obtain informed consent to treatment from a capable patient
• Even where treatment is clinically indicated, such treatment requires voluntary informed consent
• Health care providers cannot rely on the consent of a substitute decision maker without first satisfying themselves that the patient is incapable with respect to treatment
• The Health Care Consent Actdoes not define capacity based on age; a child may be capable of consenting to treatment and, before accepting consent from a substitute decision maker, the health care provider must first satisfy themselves that the child is incapable

After considering the submissions of the ER doctor and CPSO in support of HPARB’s decision, the Divisional Court found that HPARB’s decision was unreasonable.  

In its reasons, the Divisional Court first noted that clinical indication for a treatment is not the same thing as consent.  That is, a capable patient can decline treatment even if it is clinically indicated.

The Divisional Court also identified a problem with the way in which the CPSO and HPARB had considered “competing” versions of events. In this case, the ER doctor asserted that she thought she had implied consent to do the examination, while the parents disputed that she had consent.  The ICRC and the Board had concluded that they could not resolve that factual dispute.

However, the Divisional Court noted that there was no dispute that thechild had clearly expressed, verbally and physically, thatshe was not consenting to the vaginal examination.  The mother’s encouragement and assistance during the examination could not supplant the child’s rights because the ER doctor did not consider or assess whether thechild lacked capacity to consent or refuse consent.

The ER doctor had not noted any finding that that the child lacked capacity to consent. 

The Divisional Court also noted that, even if relying on the implied consent of the child’s mother, the ER doctor should also have considered the vulnerability of the child’s mother in the circumstances (ie., was any implied consent from the mother “voluntary”?)

The Divisional Court then turned to the issue of remedy.  Despite having found that the decisions below had been unreasonable, the Divisional Court decided not to return the matter for a third reconsideration.

The Divisional Court reasoned that the matter had been reviewed twice by the Family Practice Panel of the ICRC of the CPSO.  Both times, the ICRC had issued remedial dispositions.  The ER doctor had made thoughtful responses, demonstrated that she was amenable to remediation and acknowledged the need to respect the rights of child patients in the future.  Therefore, it was not in the public interest to send the matter back to the CPSO a third time.

Takeaways

The takeaways for healthcare providers are:

1. There is no “age” of consent in theHealth Care Consent Act.  A child can consent or refuse consent to treatment and the healthcare provider should be assessing capacity of the child before taking consent from the substitute decision maker.
2. If ultimately determining that the child lacks capacity and to therefore take consent from the substitute decision maker, health care providers should document their assessment and decision.
3. Consent must be “voluntary” and so any surrounding circumstances should be considered, particularly when relying on “implied” consent.
4. For lawyers, the case can be relied upon for principles to be used in support of a decision not to return a matter for further reconsideration, even after a reviewing court or tribunal has found the decision below to be unreasonable.

AtWise Health Law, we have extensive experience and expertise assisting professionals with complaints to regulatory Colleges including those under theRegulated Health Professions Act, hearings before the Health Professions Appeal and Review Board and appeals and applications for judicial review to Divisional Court.  

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