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Consent and Capacity


Consent and Capacity Back to Basics Friday April 16th, 2010 Dr. T. Lau Director, Undergraduate Education Faculty of Medicine, Department of Psychiatry – PowerPoint PPT presentation

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Title: Consent and Capacity

  • Consent and Capacity
  • Back to Basics
  • Friday April 16th, 2010

Dr. T. Lau Director, Undergraduate
Education Faculty of Medicine, Department of
  • No man is good enough to govern another man
    without that other's consent.
  • Abraham Lincoln (1809 - 1865)

Most human beings have an almost infinite
capacity for taking things for granted. Aldous
Huxley (1894 - 1963)
  • Lawyers are the only persons in whom ignorance
    of the law is not punished.
  • Jeremy Bentham

Relevant Questions
  • When and how do we assess capacity?
  • How do we obtain valid consent?
  • Whos responsibility is it?
  • Who can we go to if we have a question about
  • http//
  • http//

Elements of Consent
  • Informed
  • Specific to treatment. Awareness of nature of
    proposed treatment, expected benefits, material
    risks and potential adverse side effects,
    alternative courses of action, reasonably
    forseeable consequences of having or not having a
  • Capable
  • Understand and appreciate
  • Voluntary Consent
  • Freedom from coercion

  • Case Presentation
  • Relevant legislation
  • Case Discussion

Case 1.
  • Mr D. is a 58 y.o. M living w his wife. No prior
    PHx. Admitted to Gen Surg b/o peritonitis. He
    refuses any treatment. Although family reports a
    controlling and at times, angry personality, they
    feel he is ill. They refuse to take him home. He
    is admitted against his will.
  • He refuses treatment (Abx/Surg) and starts hunger
    strike. He threatens to kill himself or starve
    himself unless his wife takes him home. I might
    as well kill myself !
  • PSYCH CONSULT What should we do?

  • O/E
  • angry, dismissive, swearing, grumpy man. Not
    visibly depressed. Refusing interview/assessment.
    No clear psychotic sx. Vague paranoia, unclear
    if patient is delirious initially b/o lack of
  • Cannot assess capability
  • Wants to leave or go on a hunger strike.
  • What do you do?

Unable to assess initially
  • Eventually discharged w/o tx.
  • HCCA- capable to consent
  • People can make bad decisions if capable.
  • Finances/property assessment (s 78 right to
    refuse assessment/s. 27)
  • Course in hospital
  • after multiple interviews, no clear depression
    found. He is sleeping well but refusing to eat.
  • Understands and appreciates consequences of
    refusing treatment.

Relevant Legislation in Ontario
  • RSOs
  • Mental Health Act
  • Health Care Consent Act
  • Substitute Decision Act
  • Common Law Act
  • Highway Traffic Act
  • CCC
  • Fitness
  • Section 16 NCR
  • Civil Capacity

  • Deals with
  • which hospitals in Ontario are Psych facilities
  • how and when someone may be brought there
  • how they may be admitted
  • how they may be kept
  • who may see the records
  • financial incapacity under the Act in a Psych
  • rights to patient information
  • CTOs

  • Deals with
  • the rule that there must generally be informed,
    capable consent before tx or admission to a care
  • what to do in emergency situations where legally
    valid consent is N/A
  • how to determine capability for medical tx,
    admission to a NSG home or home for the aged, and
    personal assistance services once there
  • how to identify a SDM for an incapable person
  • how a SDM should make decisions
  • options available if a SDM makes decisions in an
    improper fashion

3 parts...
Health Care Consent Act
  • 3 Parts
  • Treatment A health care practitioner is to
    administer a treatment only with valid consent
  • Admission to care facility
  • under Charitable Institutions Act, Homes of the
    Aged Act Rest Homes Act, Nursing Homes Act
  • in a S-1 facility need MHA
  • Personal Assistance Services
  • hygiene, washing, dressing, grooming, eating,
    drinking, elimination, ambulation, positioning...

HCCA Tx and consent
  • 1. Consent for each indiv. tx
  • 2. Entire course of tx
  • 3. Plan of tx that deals with one or more health
    problems or likely foreseeable problems given
    current condition. May allow for withholding or
    withdrawing tx.
  • With the exception of certain emergency
    situations no tx w/o valid consent (10.1)
    (informed, capable, voluntary)
  • The law allows the health practitioner proposing
    the tx to proceed in 3 ways.

  • Elements of consent (11.1(1))
  • related to tx
  • informed
  • Informed (11.3)
  • nature
  • expected benefits
  • material risks and ASEs
  • alternative courses of action
  • likely consequences of not having tx
  • given voluntarily
  • w/o misrepresentation/fraud
  • Expressed or implied (11.4)
  • written or vocal
  • Included consent (12)
  • allows for variations/change in setting
    presuming nature/risks/benefits are not
    significantly different

Defining treatment
  • Anything that is done for a therapeutic,
    preventive, palliative, diagnostic, cosmetic, or
    other health-related purpose. It includes a
    course of treatment or a plan of treatment.
    2.1 HCCA.
  • Treatment Excludes
  • Assessing capacity
  • Assessment/Examination to know the nature of the
  • Taking Hx
  • Communicating a Dx
  • Admission to hospital or other facility
  • Provision of basic care (washing, dressing,
    hygiene, etc.)
  • A treatment that in the circumstances poses
    little or no risk of harm
  • anything prescribed by the regulations not
    constituting treatment

Defining capacity...
  • A person is capable wrt tx, admission to a care
    facility, or a personal assistance service, if
    the person is able to
  • UNDERSTAND the information that is relevant to
    making a decision
  • (cognitive ability)
  • APPRECIATE the reasonably foreseeable
    consequences of an action or inaction
  • applying the information in his/her own
    situation, assimilate and reach a decision
    examples weighing the advantages and disadvantages

Capacity depends on...
  • Treatment may be capable for some and not others
  • Time capacity can change (for example with
    delirium), particularly with treatment and status
    may need review.

Who can assess capacity?
  • For treatment
  • any health care professional
  • Placement and personal care
  • Evaluator usually hospitals have discharge
    planners DPs or case managers CMs CCAC
  • OT/PT/SW
  • Nurse
  • MD
  • Audiologists and speech pathologists
  • psychologist

Practical questions for consent to treatment
  • Does the person understand the condition for
    which the specific tx is being proposed?
  • Is the person able to explain the nature of the
    tx and understand the relevant info?
  • Is the person aware of the possible outcomes of
    tx, alternatives or lack of treatment?
  • Are the persons expectations realistic?
  • Is the person able to make a decision and
    communicate a choice?
  • Is the person able to manipulate the information

What to do if a person decides they want to leave
the hospital?
  • Is the person capable to consent to admission?
    If they are capable they can make this decision.
  • Try to reason with, communicate and support the
    patient. Consider calling the family.
  • If they are not capable and if they wish to
    contest their ongoing admission, and they are
    incapable of deciding if they should be in the
    hospital, in Ontario, assist them in making an
    application to the CCB.

Restraints CLA or MHA (15.5)
  • Under emergency conditions to prevent serious
    bodily harm to the person or others.
  • Only the minimum amount reasonable
  • Consent not required but documentation is.
  • Physical
  • that the patient was restrained, description of
    means, description of behaviour that required it
    or continues to require it
  • Chemical
  • as above but also the agent,
  • method and dosage.

Case 2.
  • Mrs. K is a 69 y.o. F, never married, with no
  • She is a retired civil servant who presents with
    a four year history of increasing paranoia whose
    delusions have become elaborate and systematized
    to include her extended family.
  • She believes that the RCMP and 5 other police
    forces are constantly monitoring her, following
    her, and preventing her from obtaining housing.

Case 2.
  • She sold her house 1 year ago because of beliefs
    that these police forces had infiltrated the
  • When she moved all her furniture was discarded
    when she believed that the moving company had
    replaced all her possessions with identical
  • She moved to an apartment which she never left
    because of paranoia. She allowed her lease to
    expire and could not find housing.

Case 2.
  • Her nephew arranged for her to go to a hotel
    after she spent a few nights on a park bench.
    She stayed for several months PTA.
  • She rarely left and did not allow cleaning staff
  • She managed her finances adequately.
  • She was admitted in the fall of last year b/o
    cellulitis. She refused psychiatric tx.

Case 2.
  • She was admitted a second time for cellulitis
    after the hotel owner called 911 and evicted her.
  • She accepted ABx but refused other medication
  • She wanted to leave the medical floor.
  • PSYCHIATRIC CONSULT What should we do?

Case 2.
  • O/E
  • cellulitis resolving
  • paranoid, dismissive, angry. Not depressed. Not
    suicidal/homicidal. Delusions persist. Insight
    poor, judgment limited
  • Demanding RCMP to provide housing and lost
    property. Believes RCMP doctors injected her
    legs and made them infected.
  • Cognition, STM intact. Cognitively capable of
    understanding information.

understands but cannot appreciate...
Case 2.
  • Course in hospital
  • transferred to psychiatric ward on a form 3 (3rd
  • assessed for capacity, felt to be incapable in
    three areas
  • although she could understand (cognitively
    capable) she could not appreciate foreseeable
    consequences b/o delusions.
  • under MHA also informed of incapacity
  • detained under MHA and treated with HCCA

understands but cannot appreciate...
Case 2. Discussion
  • Cannot appreciate therefore incapable to consent
    to tx.
  • She appealed her decision but eventually agreed
    when informed she would be placed in a NSG home
    and eventually treated anyways.
  • MHA allows detainment
  • HCCA allowed tx after SDM agrees
  • On a medical floor she was detained under the
    HCCA but once transferred to psychiatry she had
    to be detained under the MHA. Her rights advice
    and appeal process were through the CCB/MHA/HCA

Case 3.
  • Mr. D is an 72 y.o. german M previously living in
    own apartment. No children or family. No prior
    psychiatric history.
  • Admitted b/o inability to remain at home
    associated with cognitive decline to a medical
    floor. Hx of resistance to care and wandering in
  • Hx of repeat elopements (watches the elevators
    constantly), the last one where a friend helped
    took him off the unit and possibly tried to
    obtain money from his bank account.

Case 3.
  • He was returned to another ward only after a form
    1 was filed by the attending physician in order
    to facilitate return.
  • CONSULT What can we use to keep him in
    hospital? What can we use if he leaves?
  • O/E clear cognitive impairment, aphasia, memory
    impairment, confusion, functional disability.

Discussion cannot understand...
  • CCB determines that MHA is not appropriate as he
    is not a psychiatric patient
  • would be an inappropriate use of the legislation.
  • Advice given
  • RE HCCA/SDM admission to a care facility.
    Common Law Act for physical/chemical restraints.
  • Practical problem remains that if pt leaves how
    do you get the police to bring him back?
  • What about his property/finances, potential for
    abuse by the friend? PGT is the guardian.
  • (section 27 SDA).

Case 4
  • 48 y.o. M Italian speaking, living w wife, no
    PPHx. Chronic marital dysfxn. Hx of obnoxious,
    angry personality w abuse.
  • Admitted to hospital 3 mos ago b/o gangrenous toe
    txed w amputation. D/Ced to a convalescence
    home but evicted b/o aggressive behaviour.
  • Admitted 2/52 ago w confusion, sepsis now needs a
    BKA. B/O delirium marked fluctuation in
    cognitive capacity. Refusing tx now. When
    neuropsych saw him it was during a point of
    lucidity, and b/o a language barrier a full
    cognitive assessment was not done, only a MMSE.
    Felt to capable based on clinical interview.

Case 4 discussion
  • Delirium appears to be present. Fluctuation in
    ability to understand or appreciate consequences
    of decisions leads to fluctuating capacity.
  • A treatment plan needs to be worked out during a
    period of capability so that prior wishes can be
    established when condition deteriorates again.
  • A treatment plan was devised during a period of
  • What if he changes his mind when he is confused?

  • No law or ordinance is mightier than
  • Plato (427 AD - 347 AD),