Obtaining Informed Consent in Ontario

Latha (2010) notes, "Legally, treatment without consent is permissible only where common law or statute provides such authority" (p. 96) and in the case of the schizophrenic patient who refuses to take the prescribed medication the question comes down to whether the person is legally capable of making a decision. If so, then he has every right to refuse treatment; if not, treatment may be given him. This is the essence of the Health Care Consent Act, which is used to determine whether such a person as the schizophrenic patient is capable of deciding for himself (Downie, Caulfield, Flood, 2011).

The two questions that must be asked with regards to the Health Care Consent Act are: 1) Is the person capable or able of understanding the data that is relevant to his making a decision regarding treatment? 2) Is the person capable or able of appreciating the likely consequences of refusing or accepting treatment? (Health Care Consent Act, 1996).

If the person is able of doing both then that person is deemed capable of making a decision on his own and the state or hospital may not give him treatment against his will. Thus, in the case of the schizophrenic patient who refuses treatment, the measure of whether treatment can be forcefully given him depends on how these two questions are answered. To give him treatment against his will if he is able to understand the information and appreciate the consequences of actions would be to violate the Health Care Consent Act.

However, if the patient is unable to process the information given him about how to make a decision regarding information or if the patient fails to appreciate the consequences of refusing or taking treatment, then the person may be deemed incompetent and treatment may be given him against his will. In these cases, even if the patient has decided in the past to not take the treatment, his incompetence will allow medical professionals the right to administer treatment if they deem that it is for his own and for society's safety.

Thus, the issue at the heart of this process is the matter of whether the patient is deemed competent to understand the issues regarding his illness and potential treatment. The Health Care Consent Act provides the framework by which this assessment may be made and the law is required to stand by that assessment. To the extent that the patient is able to make an informed decision, the law must respect that right.

A schizophrenic patient who is, however, unable to process the information and is clearly unfit to make decisions regarding his safety and the safety of others cannot be expected to act rationally or with sound judgment. In these cases, the condition of the patient is to be something that the health care practitioners are responsible for overseeing and they then have the right to administer treatment to the individual. In these cases, the rights of the patient are placed in the care of the professional care provider because it is deemed that the patient cannot be held accountable for his or her own decision-making processes.

2

Information regarding patient care that is reviewed for quality assurance purposes is protected both by information access and privacy legislation in Ontario and by common law across all Canada. Specifically, it is protected by a number of Acts. For instance, there is the Personal Information Protection and Electronic Documents Act (PIPEDA) that is a federal law impacting all parts of Canada and serves to protect personal information from being shared. There is also the Quality Care Information Protection Act, which is Ontario law and which "protects the quality assurance/peer review process only if it is conducted by or for a hospital committee designated specifically as a quality of care committee to carry out the functions described by QCIPA" (OHA, 2004).

Additionally, as Cranston and Rozmus (2015) have indicated, "courts have recognized the importance of protecting QA-type records at common law" levels and this is evident in the Supreme Court case Slavutych v. Baker (1976) in which it was decided that the confidentiality is essential in all communications. However, as the Ontario Superior Court decided in Steep v. Scott (2002), "the goal of improving the quality of health care and health services ahead of any litigation advantage that may accrue to a party by the use of QA-type records" is given precedent (Cranston, Rozmus, 2015, p. 2). Thus, while laws and court rulings do exist, the basic concept of balancing health assurance with privacy rights is one that is constantly being monitored and re-assessed in Ontario.

The aim of this balancing act is to allow and encourage health care providers to learn about and improve upon the ways in which quality assurance can be delivered and to use data to make the situation better continuously. At the same time, the goal is to prevent negligence and respect patient rights and allow injured parties to pursue legal recourse. Privacy rights do matter in Ontario just as much as quality assurance concerns do. The laws that have developed by in Ontario and throughout Canada that are used to reflect this need to balance both portions of this societal issue are evidence that the topic is not easily navigated or maneuvered in every instance or occasion (Downie, Caulfield, Flood, 2011).

Thus, it is necessary to protect quality assurance information to ensure the full involvement of health professionals in the process of quality improvement -- but it is also important to protect the rights of patients and prevent negligence from occurring, allowing them legal recourse. The nature of the issue is such that every case must be examined and the facts made to come to light in order to make a decision in favor of health care professionals or patients. There is no simple solution or sweeping legislation that can serve as a general rule for every case.

3

The case of Hassan Rasouli is one court case that has addressed the issue of who should have final say with respect to the treatment of incapacitated patients when the family and health care team disagree. Rasouli was unconscious for over three years and medical professionals believed it futile to keep him alive on a ventilator as they saw it to be an unethical elongation of life. The family argued that Rasouli's religious beliefs would be violated if the ventilator was unplugged so Rasouli's wife refused to give consent to remove the ventilator. The Supreme Court of Canada ruled that doctors have to gain consent from a substitute decision-maker when a patient is incapacitated -- though the court did not say that families necessarily serve as that substitute. The substitute, the Court said, should be judged according to the Health Care Consent Act and should act in accordance with the legal duties prescribed under that act. Thus, if the substitute knows of a specific wish made by the incapacitated patient, the substitute is obliged to withhold or give consent accordingly. But if a specific wish is not known, the substitute must act in accordance with the best interests of the patient and not do something against them (Petch, Laupacis, 2013).

The question of who should determine best interest therefore should ultimately come down to the family, I believe. Courts are helpful in interpreting the laws and health care professionals are helpful in giving their professional opinion, but families are helpful in knowing what the patient should prefer given the circumstances. They are really the caretakers who are responsible when the health care professionals move on and when the courts close their doors. Thus, the families should have the final say in this matter -- but they should take into account what the courts and what the health care professionals tell them. Making a good decision is about being informed and gathering all the information. At the end of the day, however, the courts and the health care professionals should respect the wishes of the family as they represent the incapacitated patient. Courts and health care professionals can continue to stress their point-of-view and discuss the matter with the patient's representatives -- but they should not be allowed to force any action against the wishes of the family.

There can be exceptions to this rule if it is clear that the family has no interest in act as the patient's representatives. A standard of care and/or investment should be displayed on their part. For instance, if they are never around or express disinterest in the patient's outcome, then it may be left to those who are invested to make the decision -- i.e., the health care professionals treating him and the courts who support them. The question is not one that can easily be solved by a blanket statement because every case is really unique and there are mitigating factors that can make a substantial difference in every case. The factors that everyone must face include the extent to which a patient is incapacitated and the extent to which family members are involved. Obviously, if family members desire no part in the decision-making process, they should not be held accountable. Some families are not as close as others and some patients have to be treated and represented by those who want to care for them. In some cases this then would be the health care professionals whose job it is to do so. Past rulings of courts could be used to justify this stance.

In cases where families must be tracked down in order to apprise them of the situation regarding the patient, every effort should be made to do so, because the family may want to be part of the decision-making process and just not be in close proximity and be in contact with the patient. These issues should be resolved -- but the point is that family should be kept in the loop so long as they desire to be kept in the loop and if they are not informed about what is happening, efforts should be made to inform them. It is a similar idea to concept of obtaining informed consent.

4

Informed consent is required for the usage of banking tumors for research and the legal issues associated with this issue regard ethics and privacy. The Personal Health Information Act of 1997 was passed to ensure that patients have the right to access their personal health information and the right to have their health information kept private. Thus, if a tumor is banked, patients have the right to find out what is happening with that sample, what sort of research it is being used for, etc. The legal issues associated with the use of this type of material and the relevant sources of law are based in ethics and accountability issues as well as informed consent laws that requiring medical personnel to obtain consent from patients when they are using such samples for research. The relevant sources of law for this issue are based in the Personal Health Information Act which guarantees that patients are not placed in the dark about what is going on with their tissue samples. This is not the same as consent laws, which oblige medical professionals to obtain consent from patients.

However, there is also a need for health care professionals to perform research on tissue samples that are collected from patients. For this reason there is the COG ACNS02B3, which is a general tissue banking protocol that allows researchers to collect samples for all studies relating to brain tumor tissue. These samples are collected from patients receiving treatment at COG facilities. Samples are allowed to be collected following a simple informed consent being given. This allows samples to be used for all studies without requiring further consent from individuals. The blanket consent statement is such that it assists researchers in furthering knowledge about tumors and how to treat them (Cancer View, 2015).

In this regard, it is helpful that blanket consent statements can be given. Blanket consent statements allow for researchers to conduct meaningful work. For the patients to stay abreast of how samples are being used, they can turn to the Personal Health Information Act, because this law allows them to inquire about what is going on with their samples and stipulates that researchers must keep track of samples that are being used and where everything is going and for what study. This allows everyone to be in the loop and to operate ethically and transparently (Downie, Caulfield, Flood, 2011). The end result is that informed consent is gained and all samples are tracked so that patients can stay abreast if they desire.

References

Cancer View. (2015). Collecting and Banking Pediatric Brain Tumor Research Specimens. Retrieved from http://www.canadiancancertrials.ca/trial/Default.aspx?Trialid=NCT00228748&lang=en

Cranston, D., Rozmus, A. (2015). Quality Assurance Records and Common Law Privilege: Balancing Competing Interests. CBA.org. Retrieved from http://www.cba.org/cba/cle/PDF/HEALTH11_Cranston_PaperOutline.pdf

Downie, J., Caulfield, T., Flood, C. (2011). Canadian Health Law and Policy. CA: LexisNexis Canada.

Health Care Consent Act. (19916). Ontario. Retrieved from https://www.ontario.ca/laws/statute/96h02

Latha, K. (2010). The noncompliant patient in psychiatry: The case for and against covert/surreptitious medication. Mens Sana Monogr, 8(1): 96-121.

OHA. (2004). Quality of Care Information Protection Act. OHA. Retrieved from https://www.oha.com/Knowledgecentre/Library/Toolkits/Documents/QCIPAToolkit.pdf

Petch, J., Laupacis, A. (2013). Conflict at the end of life: what happens when doctors and families disagree. Healthydebate. Retrieved from http://healthydebate.ca/2013/11/topic/politics-of-health-care/conflict-at-the-end-of-life