Obtaining Consent Prior to Treatment
The Health Care Consent Act (“HCCA”) requires health practitioners to obtain the consent of the patient before providing any “treatment”. The HCCA defines treatment as “anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other health-related purpose, and includes a course of treatment, plan of treatment or community treatment plan.” However, the definition of treatment also provides a list of 8 items which are nottreatment for the purposes of the HCCA. This includes: (b) the assessment or examination of a person to determine the general nature of the person’s condition.
If the patient is not capable of giving consent, the practitioner must obtain consent from the patient’s substitute decision maker (SDM). The HCCA sets out a comprehensive list of “Principles for giving or refusing consent” to be applied by substitute decision makers in determining whether to consent to a specific treatment. These principles fall into two general categories: the patient’s wishes; and, if the SDM does not know the patient’s wishes, the best interests of the patient. The HCCA further outlines relevant considerations in determining the patient’s best interests, which include medical factors such as the patient’s prognosis and the likely outcome of the proposed treatment.
The Consent and Capacity Board
In circumstances where an SDM is uncertain as to whether to give or refuse consent in the circumstances, they may apply to the Consent and Capacity Board (“the Board”) for direction with respect to whether the proposed treatment is in accordance with the patient’s wishes and/or the patient’s best interests, as the case may be.
If a health practitioner is of the opinion that a SDM has not complied with section 21 in either giving or refusing consent, they may apply to the Board to determine whether the SDM has complied, and made their decision on the basis of the patient’s wishes and/or best interests.
While not the subject of this blog, a SDM may also apply to the Board in circumstances when they wish to depart from the patient’s wishes. Applications to the Board with respect to treatment can be found at sections 32-37.1 of the HCCA.
The Jurisdiction of the Board to Determine “Treatment”
In Morlani v Haddara,2021 ONSC 7288, the Court was asked to consider the Board’s jurisdiction with respect to determining whether the apnea test (the final step in determining brain death) was diagnostic such that it fell under the definition of “treatment” under the HCCA and required consent of the SDM. The patient in this case was Mr. Morlani, a 29-year-old man who suffered a loss of oxygen to his brain for approximately 30 minutes resulting from an attempted suicide by hanging. Unfortunately, CT scans performed in the days after the injury demonstrated swelling of Mr. Morlani’s brain, and areas of brain tissue death.
At the time of the application, Mr. Morlani, had been unconscious for approximately 13 days, was reliant on a ventilator for respiration, had no gag reflex or corneal reflex, was not arousable, and his pupils were fixed. Mr. Morlani had been assessed by a neurologist who determined that he had “absent brainstem reflexes” and recommended formal testing for neurological death.
Mr. Morlani’s parents differed with respect to how to proceed, with his father advising the physicians to proceed with the apnea testing, and his mother, Mrs. Morlani, refusing consent. As such, Mrs. Morlani brought an application before the Board to determine whether the apnea test is consistent with Mr. Morlani’s wishes and in his best interests. The respondent, Dr. Haddara, opposed the Board’s jurisdiction to make those findings, which gave rise to this application for an emergency injunction by Mrs. Morlani to prevent Dr. Haddara from proceeding with the apnea test before the issue could be considered by the Board.
The issue before the Court was whether the Board has jurisdiction to determine whether the apnea test is diagnostic, and therefore treatment, or if it is a general assessment of condition under the HCCA.
Both Mrs. Morlani and Dr. Haddara presented expert evidence in support of their respective positions on the subject of apnea testing. Mrs. Morlani’s experts opined that the apnea test was unethical and may in fact cause brain death in an individual who had not yet suffered brain death. They further opined that it failed to account for the possibility of a potentially reversible high cervical spinal cord injury.
On the other hand, Dr. Haddara’s expert opined that a physician must assess the condition of their patient’s brainstem, and that there are clear procedures for safely conducting the apnea test in circumstances of a high suspicion of neurological death. He further stated that Mrs. Morlani’s experts’ opinions represented a minority of the medical community, and that the risks they claimed to be associated with the apnea test are unproven.
Justice Nicholson engaged in an extensive review of the case law, citing several instances in which the Board has effectively determined its own jurisdiction, and emphasized the Board’s expertise in determining issues relating to consent. Unlike the Court on this application, the Board would have the ability to hear from the experts and the parties directly in order to determine whether to give or refuse consent in accordance with section 21 of the HCCA.
Justice Nicholson further noted that for the Court to proceed to authorize Dr. Haddara to conduct the apnea test without allowing the Board to consider, with the benefit of its expertise, whether the test is diagnostic (and thus, treatment requiring consent) or merely an assessment of general condition, would be to allow physicians to make these serious decisions without consent, and unchecked by the Board.
In cases under the HCCA, Justice Nicholson held that it is preferred that cases are determined by the Board, with the Court having an appellate role to address issues of jurisdiction. Justice Nicholson granted the application for an interim injunction until consent for the apnea test is obtained, or until such time as the Board renders its decision.
This case confirms the expertise of the Board, and makes it clear that issues requiring the consideration of the Board’s own jurisdiction are best determined by the Board.
A blog is no substitute for legal advice, and legal principles and precedent can change over time. At Wise Health Law, we represent clients before the Consent and Capacity Board. Please feel free to contact us for a consultation about the specific facts of your case.
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