Consent

A "spouse" includes two persons who are.....

- Married to each other OR - Are living in a conjugal relationship and have cohabited for at least a year OR - Are the parents of a child or who have a cohabitation agreement under the Family Law Act.

A spouse, partner or relative who is present when the treatment is proposed may make the decision unless...

- a specially appointed substitute is available OR - a spouse, partner or relative with a higher priority is available and willing to assume the responsibility to give or refuse consent

Treatment in an emergency can be provided immediately in what types of situations?

- if the person is capable of giving consent and provides the consent - communication can't take place because of a language barrier or disability, and reasonable efforts to overcome the barrier or disability have been made, but a delay will prolong the suffering the person is apparently experiencing or will put the person at risk of sustaining serious bodily harm, and there is no reason to believe the person does not want the treatment - the client is incapable with respect to the treatment decision but a substitute decision-maker is available to give consent - the client is incapable with respect to a treatment, a substitute decision-maker is not readily available, it is not reasonably possible to obtain a consent or refusal from the substitute, and a delay will put the person at risk of sustaining serious bodily harm.

What must the information given during informed consent include?

- nature of the treatment - expected benefits of the treatment - material risks and side effects of the treatment - alternative courses of action - the likely consequences of not having the treatment.

In what situations can an individual be admitted to a care facility WITHOUT consent?

- the person who has been deemed incapable requires IMMEDIATE admission as a result of a CRISIS; - and it is NOT reasonably possible to obtain immediate consent or refusal on the incapable person's behalf. (In both cases, reasonable efforts must continue to find a substitute decision-maker and obtain consent, or refusal to consent, to the treatment or admission)

The SDA involves the formal appointment of a decision-maker through which 3 methods?

1. A power of attorney document 2. The Office of the Public Guardian and Trustee (PGT) 3. A court appointment

In the hierarchy of substitute decision makers, who is #1?

1. The GUARDIAN of the client (this is appointed by the court)

In the hierarchy of substitute decision makers, who is #2?

2. Someone who has been named attorney of personal care (POWER OF ATTORNEY)

In the hierarchy of substitute decision makers, who is #3?

3. Someone appointed as a representative by the CCB

Your patient was found incapable of providing consent by the physician on your unit. Your patient appears upset by this when you talk to him. What is the best course of action? a) Further explore why the patient is upset with this finding. b) Speak with the physician about the patient's response and discuss appropriate follow-up c) Confront the physician about their wrongful assessment d) Let the patient know that they should get used to this e) A and B

A and B. If there is an indication that the client is uncomfortable with the finding of incapacity when the finding was made by another health care practitioner, then the nurse explores and clarifies the nature of the client's discomfort. If it relates to the finding of incapacity, or to the choice of substitute decision-maker, then the nurse informs the health care practitioner who made the finding of incapacity and discusses appropriate follow-up.

What does a capacity assessor do?

A capacity assessor conducts assessments of capacity on persons who need decisions made on their behalf on a continuing basis.

What is a substitute decision-maker?

A person identified by the HCCA who may make a treatment decision for someone who is incapable of making his/her own decision. The HCCA provides a hierarchy to determine who is eligible to be a substitute decision-maker. The substitute decision-maker is usually a spouse, partner or relative.

When is a person considered capable of giving consent?

A person is capable of giving consent to a treatment, admission to a care facility and personal assistance services if he/she: - understands the INFORMATION that is relevant to making a decision concerning the treatment, admission or personal assistance service AND - appreciates the reasonably possible CONSEQUENCES of a decision or lack of a decision.

When does a power of attorney for personal care come into effect?

A power of attorney for personal care comes into effect when the person who granted it becomes MENTALLY INCAPABLE, unless it states otherwise.

What does "an evaluator" do?

An evaluator determines client capacity to make a decision about admission to a care facility or a personal assistance service.

What is the definition of "treatment" as per the HCCA?

Anything done for a therapeutic, cosmetic or other health-related purpose. It includes a course of treatment or plan of treatment.

According to the HCCA, what is the main responsibility of the health care practitioner when proposing a certain treatment for a client?

Assessing the client's CAPACITY to make a treatment decision.

What are some examples of a "personal assistance service"?

Assistance with, or supervision of, hygiene, washing, dressing, grooming, eating, drinking, elimination, ambulating, positioning or any other routine activity of living. It may also include a group or plan of personal assistance services. (think ADLs)

You find that your client is incapable and therefore inform him/her that a substitute decision-maker will be asked to make the final decision. Your client becomes upset that he/she is being considered incapable. What is your best course of action? a) Conclude that the client is, in fact, capable of making a decision b) Admit the client to a care facility c) Inform the client of his/her options to apply to the CCB for a review of the finding of incapacity and/or for the appointment of a representative of his/her choice. d) Request the presence of a PGT

C. If there is an indication that the client is uncomfortable with this information, then the nurse explores and clarifies the nature of the client's discomfort. If it relates to the finding of incapacity, or to the choice of substitute decision-maker, then the nurse informs the client of his/her options to apply to the CCB for a review of the finding of incapacity, and/or for the appointment of a representative of the client's choice

If found incapable, the client has the right to ask the ____________ to review the finding of incapacity

Consent and Capacity Board (CCB)

What is the "CCB"?

Consent and Capacity Board. It is a board established by and accountable to the government.

When is consent INFORMED?

Consent is informed if, before giving it: - the person received the information about the treatment that a reasonable person in the same circumstances would require to make a decision AND - the person received responses to his/her requests for additional information about the treatment

T/F: According to the HCCA, only Nurse Practitioners (NPs) may act as evaluators.

FALSE Registered Nurses (RNs), Registered Practical Nurses (RPNs) and Nurse Practitioners (NPs) may all be evaluators. The evaluator may be the person proposing the admission or services, or the evaluator may be identified by facility or agency policies. Nurses and some other health care professionals may be evaluators.

T/F: According to the HCCA, health care practitioners will always have the authority to make treatment decisions on behalf of clients and admit clients to care facilities in all circumstances.

FALSE. Health care practitioners have NO authority to make treatment decisions on behalf of clients, except in an EMERGENCY when no authorized person is available to make the decisions. Similarly, they have NO authority to make a decision to consent to the admission of a client to a care facility, except in a crisis.

T/F: According to the HCCA, a family member acting as a substitute decision-maker is required to make a formal statement verifying his/her status.

FALSE. A family member acting as a substitute decision-maker is NOT required to make a formal statement verifying his/her status. The legislation does contain a hierarchy of substitute decision-makers.

T/F: According to the HCCA, a person's wishes about treatment, admissions or personal assistance services MUST be expressed in writing.

FALSE: A person's wishes about treatment, admissions or personal assistance services may be expressed orally, in writing, in any other form, or they may be implied.

T/F: A formal statement that the person is the substitute decision-maker is necessary to give or refuse consent to a treatment, admission to a care facility or a personal assistance service on behalf of an incapable person.

False. Health care practitioners are permitted to rely on an ASSERTION from a person that he/she is the substitute decision-maker. A formal statement that the person is the substitute decision-maker is NOT necessary to give or refuse consent to a treatment, admission to a care facility or a personal assistance service on behalf of an incapable person.

T/F: In the case of a mentally incapable client, the FIRST action of the court is to appoint a PGT as guardian of property or guardian of the person.

False. The PGT is the substitute decision-maker of LAST RESORT for a mentally incapable person. The court will NOT appoint the PGT as guardian of property or guardian of the person unless there is no other suitable person available and willing to be appointed.

T/F: A power of attorney for personal care is required to act as a substitute decision-maker

False. A power of attorney for personal care is not necessarily required to act as a substitute decision-maker.

T/F: Informed consent must always be written.

False. It can be written, oral or implied.

T/F: Relatives only include two persons related by blood.

False. Relatives include two persons related by blood, marriage or adoption

T/F: You know that providing a personal assistance service, providing a treatment that in the circumstances poses little or no risk of harm, and performing anything prescribed by the regulations are all NOT considered "treatment" as per legislation. Consequently, you do not require consent to perform these activities.

False. Standards and expectations of common law still require consent for the activities not considered as treatment under the HCCA.

T/F: According to the SDA, an individual may designate a specific person to make decisions about his/her personal care or treatment in the event that he/she becomes incapable. However, the individual may not express his/her wishes about the kinds of decisions to be made or factors to guide decisions

False. The individual may also express his/her wishes about the kinds of decisions to be made or factors to guide decisions

What is a crisis admission?

For the purpose of an admission to a care facility without consent, a crisis relates to the condition or circumstances of the person who is to be admitted to the CARE FACILITY.

If a client is found incapable, consent is to be obtained from whom?

If a person is incapable, the consent (or refusal to give consent) is to be obtained from the highest-ranked available substitute decision-maker from the HCCA hierarchy who is willing to make the decision.

In what types of circumstances would it not be reasonable for the nurse to inform a client (found incapable) that a substitute decision-maker will be asked to make a decision on his/her behalf?

If it's evident that the client wouldn't understand this information (ex: if the client is a young child, if the client has advanced dementia etc.)

What is a power of attorney document?

It is a legal document in which a capable person gives someone else the authority to make decisions about his/her personal care in the event that he/she becomes incapable. The document could also contain specific instructions about particular treatment decisions.

What is a continuing power of attorney for property?

It is the same as the power of attorney for personal care, except relating to decisions about property.

A health care professional admits a person to a hospital or other facility. Is this considered "treatment" as per the HCCA?

No

If you would like to make MINOR adjustments to your incapable client's treatment plan, should you always have to seek repeated consent from their substitute decision-maker?

No. MINOR adjustments to a treatment plan for an incapable client can be made without having to seek repeated consent from a substitute decision-maker.

In the hierarchy of substitute decision makers, who is last?

PGT is the substitute decision-maker of last resort in the absence of any more highly ranked substitute, or in the event two more equally ranked substitutes cannot agree.

Two persons who have lived together for at least one year and have a close personal relationship are considered _______

Partners

When a health care practitioner finds a client is INCAPABLE of making a treatment decision, the legislation requires the practitioner to do what?

Provide the client with information about the consequences of the finding. This provision of information must be performed in accordance with guidelines established by the practitioner's governing body. The guidelines for nurses are in Appendix A.

What is a PGT?

Public Guardian and Trustee The PGT is the substitute decision-maker of LAST RESORT for a mentally incapable person.

List the steps of obtaining consent.

Step 1: Assess capacity Step 2: Provide emergency treatment or crisis admission Step 3: Inform the client that a substitute decision-maker will make the decision Step 4: Identify a substitute decision-maker Step 5: Obtain consent from substitute decision-maker

Which act requires the assessment of capacity to make decisions about a SPECIFIC TREATMENT?

The HCCA

Which act sets out explicit rules on when consent is required for treatment or admission to a care facility, and who can give the consent when the client is incapable of doing so?

The HCCA (Health Care Consent Act). As well, it sets out rules for when a practitioner wants to obtain consent from a substitute decision-maker for personal assistance services (i.e., activities of daily living)

What does the HCCA stand for?

The Health Care Consent Act

What is the Office of the PGT?

The Office of the PGT (Public Guardian and Trustee) is the government department that deals with personal care and property matters

If a client is found incapable and there is no other substitute decision-maker, who is the substitute decision-maker of last resort?

The PGT

Which act deals with decision-making about personal care or property on behalf of incapable persons?

The Substitute Decisions Act (SDA)

What are the goals of the HCCA?

The goals of the HCCA include: - promoting individual authority and AUTONOMY - facilitating COMMUNICATION between health care practitioners and their clients - ensuring a significant role for FAMILY members when the client is incapable of consenting

If the nurse proposing a treatment or evaluating capacity to make an admission or personal assistance service decision determines the client is incapable of making the decision, what is important for the nurse to communicate to the client?

The nurse must inform the client that a substitute decision-maker will be asked to make the final decision (Step 3). This is communicated in a way that takes into account the particular circumstances of the client's condition and the nurse-client relationship.

What is an emergency?

There is an emergency if the person is experiencing severe suffering or is at risk of sustaining serious bodily harm if the treatment is not administered promptly. An examination or diagnostic procedure that is a treatment may be conducted without consent if it is reasonably necessary to determine if there is an emergency

According to the HCCA, consent to treatment (and assessing the capacity to consent to treatment) must relate to a SPECIFIC treatment or plan of treatment. What does this imply?

This means that a person could be capable of giving consent to one treatment, but incapable with respect to another. Remember that consent to treatment involves an ongoing process that can change at any time!

T/F: A plan of treatment may include the withholding or withdrawal of treatment in light of the person's health condition

True

T/F: A substitute decision-maker has the right to access the same information that a capable client would be able to access

True

T/F: According to the SDA, a person under statutory guardianship may apply to the CCB for a review of a finding of incapacity.

True

T/F: Consent can be withdrawn at any time.

True

T/F: One health care practitioner can propose a plan of treatment and obtain consent to the plan on behalf of ALL the health care practitioners involved in the plan.

True

T/F: The HCCA deals separately with consent to treatment, consent to a care facility and consent to a personal assistance service. In all cases, consent must be given by a capable person

True

T/F: Only trained capacity assessors may determine capacity for the purpose of the SDA (i.e., the capacity to make decisions on an ongoing basis).

True NPs, RNs and RPNs are eligible to become capacity assessors. Designation will require the successful completion of a capacity assessor education or training course approved or required by the attorney general.

T/F: The HCCA does not specify that consent to a personal assistance service is required.

True. It does, however, provide that if an evaluator finds a recipient of a personal assistance service incapable of giving consent, and the person providing the service wants to obtain consent, it may be obtained from a substitute decision-maker using the hierarchy set out in the Act

What is the difference between the HCCA and the SDA?

Whereas the HCCA is concerned with the capacity to make decisions in relation to SPECIFIC treatment, admission to care facilities or personal assistance services, the SDA is concerned with persons who need decisions made on their behalf on a CONTINUING BASIS.

If consent to admission to a care facility is required by law, then consent is needed in all cases except in ______________

a crisis situation

Step 1 to obtaining consent concerns: a) Assessing capacity of the client b) Identifying a substitute decision-maker c) Informing the client that a substitute decision-maker will be making the decision d) Providing emergency treatment or a crisis admission

a) Assessing capacity

In the hierarchy of substitute decision makers, #4 includes the spouse, partner or relative. What is the order?

a. Spouse/partner b. Child if 16 or older; custodial parent (can be younger than 16 if the client is their child), or Children's Aid Society c. Parent who has only a right of access d. brother/sister e. other relative

Under the HCCA, the _____________ is responsible for determining capacity for consent to treatment. a) client b) health care practitioner who proposes the treatment c) substitute-decision-maker d) the PGT

b) health care practitioner who proposes the treatment The client is PRESUMED TO BE CAPABLE of making decisions about treatment, admission and personal assistance services, and a health care practitioner or evaluator is entitled to rely on this presumption of capacity unless she/he has reasonable grounds to believe otherwise. If the client is capable, then the client makes the decision

Consent is required for any treatment except treatment provided in _________________.

certain emergency situations

What is the minimum age of giving consent? a) 12 b) 16 c) 18 d) There is no minimum age of consent

d) There is no minimum age for giving consent. Health care practitioners and evaluators should use professional judgment, taking into account the circumstances and the client's condition, to determine whether the young client has the capacity to understand and appreciate the information relevant to making the decision

According to College of Nurses of Ontario (CNO) standards, nurses are accountable for obtaining consent whether the intervention or service relates to: a) a TREATMENT (as defined in the HCCA or as required in common law) b) admission to a FACILITY c) the provision of a PERSONAL ASSISTANCE service d) a and b e) all of the above

e) all of the above. ***Note that the HCCA, however, deals with these 3 circumstances differently The health care practitioner who proposes the treatment is responsible for taking reasonable steps to ensure that treatment is not administered without consent

Which of the following is FALSE about consent? Consent must: a) relate to the treatment being proposed b) be informed c) be voluntary d) not have been obtained through misrepresentation or fraud e) be obtained from an individual 16 years of age or older

e) is false. There is NO minimum age of consent.

Which of the following activities IS included in the legislation's definition of "treatment"? a) assessing the person's capacity to make decisions about treatment, admission to a care facility or personal assistance services; b) assessing the person's capacity to manage property c) taking a health history d) assessing or examining a person to determine the general nature of the person's condition e) communicating an assessment or a diagnosis f) none of the above

f) none of the above

The members of the CCB are appointed by the __________. The Board considers applications for review of findings of __________, applications relating to the appointment of a __________, and applications for direction regarding the best interests and wishes of an incapable person

government incapacity representative