SOME LAW TO THINK ABOUT: CAPACITY TO CONSENT TO TREATMENT
At Quinn Thiele Mineault Grodzki LLP we recognize the need for continued study and keeping up with developments in the law. Over time, the law changes either through the passage of new laws by Parliament, the provincial legislatures, local government or also through the interpretation of law by the Courts. Keeping up with these developments is critical to QTMG’s success in representing you. This series, Some Law to Think About, is written to highlight some of the important legal considerations that go into our personal injury cases that we at QTMG handle on behalf of our clients. We hope that you find this interesting and feel that it is indeed some law to think about.
DISCUSSION: CAPACITY TO CONSENT TO TREATMENT
The law in Ontario presumes that a person is capable of consenting to medical treatment. This presumption may only be rebutted on the evidence of an attending physician or health care practitioner. The burden of proof that applies in these circumstances is proof on a balance of probabilities.
The governing legislation, in Ontario, is the Health Care Consent Act, and with respect to capacity to consent to treatment the operative section provides that a person is capable with respect to a treatment, 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 about the treatment, admission or personal assistance service, as the case may be, and is able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
The test in relation to the above section may be considered in two parts. The first is an objective test where the question is whether the person has the ability to understand the information that is relevant to making a decision with respect to the proposed treatment. Where the individual does not lack apparent cognitive abilities it is entirely possible for the individual to understand the information with respect to the proposed treatment and therefore be found capable in relation to this branch of the test.
The second part of the test is a subjective one. In this context, the question is whether the patient is unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision about the treatment in question. This test considers whether the patient has the insight to understand the consequences of a decision as opposed to simply understanding the information that goes into a decision respecting treatment.
This may seem to be a confusing concept but it is perhaps best explained through two examples of the application of the second test. Example one is where an individual fails to appreciate that they even suffer from, for example, a mental illness. The inability or unwillingness to recognize the manifestations of the symptoms of a mental illness on a patient’s own circumstances leads to a conclusion that the person does not have the capacity to consent to treatment as the patient is unable to make a decision.
The second example, where a person with mental illness may still have capacity to consent to treatment is where the patient is able to recognize that they have a mental illness, that they are aware of the mental illness and are able to appreciate the impact of choosing or not choosing to pursue a course of treatment. In such circumstances, the person can be held to have capacity even though they have a serious mental illness that may remain untreated by virtue of their choice.
Capacity to consent to treatment is an issue and concern for an increasing number of people in Ontario where there is an aging population. Understanding the legal tests with respect to capacity can indeed be helpful in discerning whether a loved one actually appreciates the circumstances that they are in or whether it is necessary to step in and seek professional assistance for the patient/loved one.
If you are interested in reading further on the issues outlined herein you may wish to consider reading the case of BDS (Re), 2012 CanLII 12684 (ON CCB).
This article is not-intended on to be legal advice. Consult a lawyer for legal advice.
Quinn Thiele Mineault Grodzki LLP
PERSONAL INJURY LAWYERS,
OTTAWA, ONTARIO, CANADA