Guest Post: Informed Consent
by Family Councils Ontario
By Lisa Feldstein, Lawyer practicing Family Health Law™ at Lisa Feldstein Law Office.
What is “informed consent”?
When a person is asked to make a decision about health care, it is supposed to be informed. The law is clear that merely signing a Consent Form does not constitute informed consent.
Informed consent is an essential part of health care law in Ontario. It reflects our right to determine what happens to our own bodies. Without the law of informed consent, we could be subject to unwanted treatments or be given medication without knowing what is actually being administered.
In Ontario the phrase “informed consent” refers to a process whereby a person or their substitute decision-maker (“SDM”) receives enough information about their options to make an informed decision. The information might be communicated during a meeting but sometimes, often due to time constraints, it is done predominantly through literature (or, unfortunately, not at all).
With respect to decisions about treatment, the Health Care Consent Act tells us that informed consent consists of four elements:
1. The consent must relate to the treatment.
2. The consent must not be obtained through misrepresentation or fraud.
3. The consent must be given voluntarily.
4.The consent must be informed.
The word “informed” is further defined to include information under the following categories:
1. The nature of the treatment.
2. The expected benefits of the treatment.
3. The material risks of the treatment.
4. The material side effects of the treatment.
5. Alternative courses of action.
6. The likely consequences of not having the treatment.
Therefore, a decision to consent is not fully informed if the person deciding was not aware of the alternatives to the proposed treatment (such as the option of making dietary changes instead of taking insulin immediately to treat Type II Diabetes).
Patients and SDMs are within their rights to request information about each of these categories before making a decision. After obtaining the information a person may provide consent to whatever is proposed, or decline to consent.
Provided the decision is informed, and the person making the decision has the proper legal authority, the decision will usually be followed without issue. Subject to rare exceptions (such as emergencies), treatment usually cannot begin without consent.
Once consent is provided, health professionals do not need to obtain new consent for variations or adjustments in the treatment, if the nature, expected benefits, material risks and material side effects of the changed treatment are not significantly different from those of the original treatment. Likewise, fresh consent is not required simply because a person changes settings (for example, from home to long-term care). This is referred to as “included consent”.
Consent to treatment can be withdrawn at any time. This means that a patient or SDM is entitled to change their mind if a person is experiencing unpleasant side effects and the pros of the medication no longer seem to outweigh the cons.
It is important to become familiar with consent laws if you are making treatment decisions on a regular basis or decisions of great consequence. SDMs in particular have additional legal obligations that dictate how consent must be provided or declined on behalf of another person. Failure to comply with the laws can result in losing one’s decision-making authority.
Disclaimer: This blog should not be relied upon as legal advice. The law of informed consent varies depending on the context and decision in question, and in accordance with the laws of the applicable jurisdiction.