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Here we offer our interpretations of consent legislation on issues where there remains a degree of uncertainty. Under normal circumstances, healthcare practitioners are quite comfortable with the notion of uncertainty; Every patient interaction requires estimation of odds and their applicability to the case at hand. But the uncertainty we are interested in is complicated by: (1) fear of contravening ethical obligations (in doing harm to the therapeutic relationship); and even more challenging (2) fear of being challenged in court (and the repercussions that ensue).
We hope to draw some common sense boundaries around what consent should look like, and where consent is even required in the first place. For example, patients who no longer require acute care services provided by tertiary or even quaternary hospitals are often not discharged because physicians recognize that they would benefit from a longer stay, or that they are at significant risk of failing in the community. There are often family members who are also refusing to cooperate with the discharge. While there are very real ethical concerns involved in such cases, the legal ones are much clearer. Patients no longer in need of acute care services need to be discharged, and their consent (or that of their families) is not required.
Once we are properly following consent obligations for all patients, at all times, we will then better understand what policy and ethical challenges truly remain.We believe that proper consent (or action without consent) is in fact one of our first ethical obligations. Failure to follow consent legislation can at best only delay the ethical complications, and at worst, magnify them. Further, we believe there are significant efficiency gains that can be realized through better adherence to consent obligations.
The legislation we base the majority of our interpretations on is the Health Care Consent Act of Ontario (Canada). This does not, however, necessarily limit the applicability of our interpretations in other jurisdictions. Consent laws are very similar in most jurisdictions with some notable exceptions around particular details (e.g. minimum age to consent to treatment). Common law continues to evolve and rules around healthcare consent appear to be harmonizing (e.g. A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30)