chapter II Flashcards
what are the elements of a valid consent, according to the HCCA?
relate to the proposed treatment
given voluntary
informed
- questions answered honestly
- obligation to disclose expected benefits, material risks, side effects, alternative treatments, and likely consequences of no treatment
can be withdrawn at any time
given explicitly/implicitly
what should be noted about consent that includes limits (from the patient)?
patients may explicitly limit treatment
healthcare practitioners can refuse to provide treatment if the limits imposed by the patient render the treatment futile or dangerous
what are the exceptions to common law consent?
unforeseen medical emergency where it is impossible to obtain consent or refusal
consent to overall course of treatment/plan includes consent to subordinate or technical procedures
therapeutic privilege??
what are the general principles of consent under the Health Care Consent Act (HCCA)?
regulated health practitioners cannot provide treatment unless:
they are of the opinion that the patient was capable and consented
OR
of the opinion that the patient was incapable and their substitute decision maker consented
what should be noted about “extension” of consent?
consent to plan by one practitioner provides authority for other practitioners providing services under the plan
what is the appropriate tort for a case where there was consent but it was not properly informed?
negligence
what would a case that’s considered battery look like?
the patient did not consent at all
consent was exceeded
consent was obtained by fraud
give an example of a case when a signed consent form lacked information – thus, not considered informed consent
Reid v. Maloney
The Court expressly rejected the contention that “handing a patient a consent form and getting it back without more” provides informed consent.
Maloney failed to inform Reid that he intended to manipulate her spine in the precise location of the previous surgeries or of the elevated risks that this entailed given her surgical history. Nor was she informed of the alternative treatments or their risks.
Thus, despite the signed consent form, Maloney was held liable for negligently failing to obtain an informed consent to the proposed treatment.
give an example of a case when the patient couldn’t read or understand English and signed consent forms – the consent forms were deemed invalid
Montaron v. Wagner
the plaintiff, who had obvious difficulties understanding English, signed a form that purported to provide his consent to a procedure that was far more radical than that to which he had originally consented
since no attempt had been made to ensure that he understood the procedure, the Court held that the consent form was invalid
define capacity to consent under the Health Care Consent Act (HCCA)
relates to a patient’s ability to understand the information relating to the decision and the reasonably foreseeable consequences of consenting or refusing consent
does not relate to one’s ability to make a rational decision
this low threshold maximizes individual autonomy
who determines if one is capable of making a decision?
determination to be made by person providing the service
individuals are presumed capable unless there is evidence to the contrary
describe the case: Re C. (capacity to consent)
a man suffering from paranoid schizophrenia developed gangrene in his foot
the surgeon believed the man had only a low chance of survival without amputation
the man refused amputation
the court had to determine whether his capacity was so reduced by his chronic mental illness that he did not sufficiently understand the nature, purpose, and effects of the proposed medical treatment
there was evidence that he had understood and retained the relevant treatment information, considered it, and arrived at a clear choice
thus, the presumption in favour of the plaintiff’s right to self-determination had not been displaced and the Court granted the order
describe the case: Neto v. Klukach (capacity to consent)
Neto was diagnosed in her teens as having bipolar affective disorder and was on lithium
Neto objected to the anti-psychotic drugs that she was prescribed
her doctor found her incapable of making treatment decisions because she refused to acknowledge that she had bipolar disorder and because of her delusional beliefs about lithium and her other medications
Neto challenged the doctor’s decision to the Consent and Capacity Board (CCB)
at first, the board upheld the doctor’s decision. they did not believe she had the ability to appreciate the reasonably foreseeable consequences.
Neto appealed their decision. the Court considered 3 factors and then concluded that Neto had the ability to appreciate the consequences of her decision and granted her appeal
in Neto v. Klukach, what were the 3 factors the Consent and Capacity Board (CCB) considered in determining whether a patient has the ability to appreciate the consequences of their treatment decisions?
- patients do not need to admit their mental illness. but they must be able to acknowledge they’re “affected by manifestations” of what others recognize as a mental illness
- patients must be able to assess how the proposed treatment and its alternatives, including no treatment, could affect their quality of life
- the patient’s decisions must not be “substantially” based on delusional thinking
describe the case: TW (Re) – (capacity to consent)
TW, man with Down’s syndrome, living with his parents
he required heart surgery which normally uses blood transfusion, but could be done without them at a greater risk. due to his faith he requested no blood transfusions
a psychiatrist was consulted regarding TW’s capacity who did not provide resources for her verdict of him being incapable of consenting.
the Consent and Capacity Board (CCB) concluded that most of the evidence suggested that TW was capable of consenting to the broad strokes of the proposed treatment and appreciated that there was an increased risk of dying if he had the surgery without blood. In the Board’s words, the evidence was wholly insufficient to establish that TW lacked capacity to consent or refuse consent to the proposed treatment
