No Consent Required

While the Health Care Consent Act provides valuable instruction on how to obtain appropriate consent, it also makes clear that there are some circumstances for which consent is not required. These situations are listed explicitly in the definitions, but also are implied by a broader reading of the act.

To start, there are things we can do that don’t require consent. These are specifically laid out as items that don’t constitute “treatment” :

  1. the assessment for the purpose of this Act of a person’s capacity with respect to a treatment, admission to a care facility or a personal assistance service
  2. the assessment or examination of a person to determine the general nature of the person’s condition,
  3. the taking of a person’s health history,
  4. the communication of an assessment or diagnosis,
  5. the admission of a person to a hospital or other facility,
  6. a personal assistance service,
  7. a treatment that in the circumstances poses little or no risk of harm to the person

 

But the flip side of the coin is that there are things we cannot do – precisely because consent doesn’t apply. These include:

  1. we can’t interfere with a patient who wishes to self discharge, even where we believe they are returning to an unsafe environment. Leaving the hospital is not a treatment, nor is it a ‘placement’ – and therefore it does not require consent.
  2. we can’t stop a patient from eating because we believe they are at risk for aspiration. When a patient feeds herself PO, it does not constitute treatment.

 

An important implication is that we also can’t refer to a patient as being “incapable” of making such decisions, despite our feeling they are putting themselves at risk. Capacity only applies to treatment or placement decisions, and therefore it is meaningless to refer to such decisions as incapable.

IF we are concerned about a patients decisions, we can however propose treatments, or placement – to which we can then legitimately address questions of capacity. For example, a patient may be incapable of refusing placement in LTC or receiving an NG tube.