Consent and Capacity are two central tenets in modern medicine and critical to patient autonomy, the respect for personal dignity, and the delivery of ethical care by physicians. This page focuses specifically on legislation and laws in the province of Ontario, Canada. The basic principles can be applied throughout Canada, because of the 2003 Supreme Court ruling (Starson v. Swayze) but please be aware of your own jurisdiction's specifics.[1]
Obtaining Informed Consent is the process of getting permission from a patient before conducting a healthcare intervention (e.g. - prescribing a medication or a surgical procedure). Only a health practitioner (i.e. - usually the most responsible provider, or MRP) who has the knowledge to answer a person’s questions about the treatment can carry out the process of obtaining informed consent to the treatment. For a patient to provide consent to a treatment, they must be capable (i.e. - able to “understand” and “appreciate” the nature of a treatment - see Capacity section below). There is no specific age requirement to consent (but obviously one must factor that a 4-year-old will not have the same understanding of any treatment compared to a 40-year-old).
When a physician obtains informed consent, it must:
The key components of obtaining informed consent from your patient includes discussing the following:
Class | Documentation |
---|---|
Antipsychotics | Consent was obtained to start the antipsychotic. The benefits of treatment were discussed, including reduction of psychotic symptoms, improved insight, judgment, and reduction in maladaptive behaviours. We also discussed the likely possibility of worsening symptoms and the clinical course without treatment. The rare risk of death/CVA, NMS, parkinsonism, involuntary movements due to EPS were also discussed. We discussed possible side effects including falls, sedation, metabolic syndrome, and QTc prolongation/arrhythmia. We also discussed the importance of ongoing monitoring for metabolic syndrome and side effects such as hyperlipidemia, and elevated glucose. |
Antidepressants | Consent was obtained to start an antidepressant for the patient. We discussed the common side effects, including nausea, headaches, sexual dysfunction, and increased anxiety, and that most of these side effects will self-resolve 1 to 2 weeks into treatment. Rare but serious side effects, including serotonin syndrome, hyponatremia, elevated bleeding risk, anti-depressant-induced mania/hypomania, and increased risk of suicidal ideation were also discussed. |
Medication | Documentation |
---|---|
Clozapine[2] | Consent was obtained to start clozapine for the patient. We discussed the risks and benefits of treatment with clozapine, including side effects such as agranulocytosis, myocarditis, weight gain, hypersalivation, as well as metabolic side effects. We also discussed the benefits of treatment, including reduction in symptoms of psychosis. We also discussed the role of ongoing blood work and monitoring involved. |
An individual can be treated in an emergency without their consent if they are experiencing severe suffering, or are at risk of sustaining serious bodily harm to themselves or others if the treatment is not given promptly. Similarly, emergency treatment can proceed if the delay required to obtain consent, or their refusal would prolong their suffering, or put themselves at risk of sustaining serious bodily harm. This allows physicians to give medications to manage acute agitation in patients.
Capacity is the ability to understand and appreciate the consequences of a treatment. The approach to capacity (especially for psychiatric reasons) has become more nuanced in the last few decades. Capacity is no longer a one-time assessment that applies globally to everything. Instead, capacity can fluctuate, and also is specific to the type of treatment being offered.
These are the key points to consider regarding capacity:
A Capacity Assessment involves assessing two branches: (1) the patient's ability to understand the information that is relevant to making a decision about the treatment, and (2) the patient's ability to appreciate the reasonably foreseeable consequences of a decision or lack of a decision. Incapacity occurs when, on a balance of probabilities, the patient fails either one or both branches of the capacity test. Furthermore, this must be documented appropriately in the patient's chart.[4]
When doing a capacity assessment for treatment with medication, you should to discuss treatment options in terms of classes of medications (i.e. - antipsychotics, antidepressants, etc.) This gives you broader coverage to change antipsychotics without needing to do repeat capacity assessments. You cannot obtain capacity/consent beyond a class of medications (i.e. - you cannot do a capacity assessment or obtain consent for all forms of psychiatric medications!). If you deem a patient incapable, you have to ask yourself: the patient is incapable to what specific treatment? There is no such thing as “global incapacity.”
Understanding | Appreciation | |
---|---|---|
Description | Is the person is able to understand the information that is relevant to making a decision about the treatment? Do they have the cognitive ability to attend to, comprehend, retain and process relevant information? | Are they able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. An individual fails this test if they are unable to recognize the possibility that they are affected by the manifestations of the condition you describe to them and cannot appreciate the consequences of the decision being made. |
Factors | • What information has been given to the patient? • What is the patient's response to this information? | • Discuss what you think are the reasonably forseeable consequences from treatment, or lack of treatment. • Are they able to apply the relevant information to their own circumstances and to weigh foreseeable risks and benefits? |
Examples of failing this branch | • Individuals with a cognitive condition (e.g. - dementia, traumatic brain injury) that impedes their ability to retain and or process the information. • There is a very high threshold to actually fail this branch of the test (and most patients will pass it) | • A patient diagnosed with schizophrenia is able to understand the information about the illness, and that it can affect some people, but does not believe that he/she has that illness, in spite of a two-year history of symptoms consistent with schizophrenia, hospitalization and treatment. • A patient diagnosed with anorexia nervosa is able to understand and intelligently discuss the nature and consequences of the illness and readily acknowledges that people have to eat or that they may die. In spite of this, the patient is not able to eat and maintains that he/she will be fine. |
A finding of incapacity need to be documented on the medical record. In Ontario, if incapacity is for psychiatric reasons, a notice to the patient (Form 33) must be given, and rights advice must be notified. For non-psychiatric purposes, one does not need to give a Form 33 to the patient nor notify a rights adviser. However, the physician should provide rights information to the patient. After a finding of incapacity, you should continually assess capacity and document this; this is considered good practice!
A capacity assessment was done today. [Patient] agreed/disagreed with a provisional diagnosis of [mental disorder]. [Patient] agreed/disagreed that they had a mental disorder. [Patient] was able/unable to understand the side effects of treatment with an antipsychotic such as paliperidone. When asked how these medications relates to the diagnosis of psychosis/schizophrenia, [Patient] could not apply it to their own situation. Furthermore, when asked in detail about what would happen if they were to stop taking medications, they said [patient quote].
[Patient] was unable to appreciate the foreseeable consequences of taking antipsychotics or lack of taking antipsychotic medications. [Patient] COULD NOT apply the relevant information provided to them to their own circumstances or weigh foreseeable risks and benefits. In particular, they could not appreciate that their non-adherence to medication would likely lead to [symptoms of disorder]. Based on this assessment, [Patient] fails the SECOND BRANCH of the capacity test.
In Ontario, psychiatric and medical incapacity are separate. See the table below for an example.
Incapacity for Mental Health Treatment | Incapacity for Medical Treatment | |
---|---|---|
Example Diagnosis | Schizophrenia | Diabetic Ketoacidosis |
Cause of Incapacity | Delusions and hallucinations leading to inability to appreciate that treatment is needed | Delirium and decreased level of consciousness leading to inability to understand and appreciate that treatment is needed |
Proposed Treatment | Antipsychotics | Insulin |
Mental Health Act (MHA) Applies? | Yes | No |
Health Care Consent Act (HCCA) Applies? | Yes | Yes |
Form 33 | Required | Not required (Rights Advisor does not need to be not notified. Rights Advice only needs to be provided by the health practitioner) |
Leaving Against Medical Advice | Can leave if status is a voluntary patient. Otherwise, cannot leave if on a Form 1, Form 3, or Form 4. | Can leave if status is a voluntary patient. If there is a legitimate safety concern about the patient leaving, you would thus need to issue a Form 1 (e.g. - trying to leave during an episode of delirium) |
In Ontario, if a patient is found incapable, you must find a Substitute Decision Maker (SDM) to give consent on the patient's behalf. The hierarchy of SDMs is dictated by the Healthcare Consent Act (HCCA). Here are some points to consider when an SDM is involved: