This section describes the general law of consent to treatment, capacity with respect to treatment decisions, and substitute decision-making in Ontario.

 

A. Consent to Treatment

1. The Common Law

The common law has long established that health care practitioners must first obtain the consent of a patient before any treatment is provided. Consent may be obtained in either written or oral form,[15] or may be assumed from a patient’s conduct.[16] A failure to obtain consent from a patient or to disclose relevant information may lead to an action in battery. For example, in the case of Allan v. New Mount Sinai Hospital, the issue before the court was whether the plaintiff had consented to the administration of anaesthesia to her arm by the defendant anaesthetist, Dr. Hellman. Linden J. summarized the then common law of consent, and its application to the facts of that case, as follows:

The administration of an anaesthetic is a surgical operation. To do so would constitute a battery, unless the anaesthetist is able to establish that his patient has consented to it. …. An actual, subjective consent, however, is not always necessary if the doctor reasonably believes that the patient has consented. Thus, if a patient holds up an arm for a vaccination, and the doctor does one, reasonably believing that the patient is consenting to it, the patient cannot complain afterwards that there was no consent: O’Brien v. Cunard S.S. Co., Ltd. (1891), 28 N.E. 266. Silence by a patient, however, is not necessarily a consent. Whether a doctor can reasonably infer that a consent was given by a patient, or whether he cannot infer such consent, and must respect the wishes of the patient, as foolish as they may be, always depends on the circumstances.
 …
While our Courts rightly resist advising the medical profession about how to conduct their practice, our law is clear that the consent of a patient must be obtained before any surgical procedure can be conducted. Without a consent, either written or oral, no surgery may be performed. This is not a mere formality; it is an important individual right to have control over one’s own body, even where medical treatment is involved. It is the patient, not the doctor, who decides whether surgery will be performed, where it will be done, when it will be done and by whom it will be done. Dr. Hellman, when told by Mrs. Allan not to use her left arm, had an obligation to comply with her wishes. If he thought it inadvisable, it was his duty to discuss the matter with her and try to convince her to change her mind. The expert evidence of Dr. Renwick was to the effect that this would be the usual thing to do. Dr. Hellman was not entitled to say that he knew what he was doing, and proceed to inject the needle into Mrs. Allan’s left arm contrary to her express wishes.[17]

To be legally valid, the patient’s consent must also be informed: the consent must be obtained after the nature of the treatment has been explained to the patient and the patient has been advised of the risks involved and about any available alternatives to the proposed treatment. Informed consent requires that the patient be “given the proper time and environment in order to assess the information.”[18]

A patient retains the ability to withdraw consent. Withdrawal of consent has been deemed to be valid when a patient is capable of understanding the nature and consequences of withdrawing consent. A health practitioner who continues to provide treatment after consent has been withdrawn may also be liable for battery.[19]

The guiding principle at common law was, and continues to be, the concept of individual autonomy. Courts of different levels have repeatedly cited this concept,[20] including the Ontario Court of Appeal decision in Malette v Shulman:

The doctrine of informed consent holds that no medical procedure may be undertaken without the patient’s consent, obtained after the patient has been provided with sufficient information to evaluate the risks and benefits of the proposed treatment and other available options. The doctrine presupposes the patient’s capacity to make a subjective treatment decision, based on her understanding of the necessary medical facts provided by the doctor and on her assessment of her own personal circumstances.[21]

In 1980, the cases of Hopp v Lepp[22] and Reibl v Hughes[23] were heard by the Supreme Court of Canada and “had a monumental effect on consent litigation in Canada.”[24] The decision of Hopp v Lepp clarified the standard of informed consent such that: “even if a certain risk is a mere possibility which ordinarily need not be disclosed, yet if its occurrence carries serious consequences, as for example, paralysis or even death, it should be regarded as a material risk requiring disclosure.”[25] Thereafter, even remote risks of death had to be disclosed to patients.[26]

In Reibl v Hughes, the patient had consented to undergo elective surgery, namely an endarterectomy to reduce future risk of stroke, but this consent was not informed. The Supreme Court established that, since the plaintiff had consented, the plaintiff could not sue for assault and battery, but could sue in negligence.[27] The Court reasoned that, in essence, the allegation against the physician was that the consent had been obtained negligently – by not providing the information that was pertinent, including the possibility of stroke arising from the elective surgery.[28] The result of this decision was that the plaintiff was required to prove causation on the negligence standard, which asks “what the average reasonable person in the patient’s position would have done in the circumstances.”[29] The plaintiff, Mr. Reibl, was clear that had he been provided with the appropriate information, he would have foregone the elective surgery until such time as his retirement pension vested a year and a half later.

In the very recent Supreme Court of Canada decision in Cuthbertson v. Rasouli (“Rasouli”), McLachlin, C.J., writing for the majority of the Court reviewed the established common law backdrop in Ontario for consent to treatment:

At common law, medical caregivers must obtain a patient’s consent to the administration of medical treatment: Reibl v. Hughes, [1980] 2 S.C.R. 880; Hopp v. Lepp, [1980] 2 S.C.R. 192. The physician cannot override the patient’s wishes to be free from treatment, even if he believes that treatment is in the vital interests of the patient. The patient’s consent must be given voluntarily and must be informed, which requires physicians to ensure the patient understands the nature of the procedure, its risks and benefits, and the availability of alternative treatments before making a decision about a course of treatment. The requirement for informed consent is rooted in the concepts of an individual’s right to bodily integrity and respect for patient autonomy: see Fleming v. Reid (1991), 4 O.R. (3d) 74 (C.A.).

The common law of consent to medical treatment works well for patients who have the capacity to decide on consent to treatment, in the sense of being able to understand the nature, purpose, and consequences of the proposed treatment. The patient’s autonomy interest — the right to decide what happens to one’s body and one’s life — has historically been viewed as trumping all other interests, including what physicians may think is in the patient’s best interests.

However, the traditional common law approach to medical treatment is more problematic when a patient is incapable of appreciating the nature, purpose, and consequences of the proposed treatment. As explained in Malette v. Shulman (1990), 72 O.R. (2d) 417 (C.A.), at pp. 423-24, the common law doctrine of informed consent “presupposes the patient’s capacity to make a subjective treatment decision based on her understanding of the necessary medical facts provided by the doctor and on her assessment of her own personal circumstances”. When such capacity is lacking, the patient is not in a position to exercise his autonomy by consenting to or refusing medical treatment.

If a patient is incapable, disputes over consent to treatment at common law are resolved in the courts. The focus shifts from the patient’s autonomy interest, which is compromised or extinguished, to whether receiving treatment is in the best interests of the patient. In emergency situations, where treatment is necessary to save the life or preserve the health of an incapable patient, treatment may be provided without consent: Malette, at p. 424. In non-emergency situations, treatment may be authorized by a court, acting under its parens patriae jurisdiction, or in the case of an incapable minor, by the child’s parents or legal guardian. See e.g. E. (Mrs.) v. Eve, [1986] 2 S.C.R. 388; B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315, at para. 83; Re S.D., [1983] 3 W.W.R. 618 (B.C. S.C.), at p. 629.[30]

The Supreme Court’s decision in Rasouli will be discussed in more detail below. It is important to note the difficulties identified by the Supreme Court that arise at common law where a patient is incapable of consenting to treatment. In order to resolve many of these difficulties, the procedures for decision-making on behalf of incapable patients are now almost exclusively set out by statute in Ontario, as discussed below.

Just as consent to treatment cannot be obtained in an informational vacuum, patients cannot give informed consent to treatments that have not yet been proposed by a health practitioner. While the law of consent to treatment addresses the information that must be provided to a patient about a proposed treatment, it is primarily the law of professional negligence (and misconduct) that addresses what treatments must be proposed. Under the rubric of the applicable standard of care, the law states that:

[e]very medical practitioner must bring to his or her task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. He or she is bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the same experience and standing.[31]

The selection of treatments to be proposed to patients is an issue of professional judgment by the health practitioner, to be reviewed on the basis of applicable professional standards.[32] Informed consent to treatment necessarily involves two decisions: the health practitioner exercising professional judgment to determine what treatment options to raise with the patient, and the patient deciding which treatment option will be consented to once the risks and benefits of treatment have been disclosed (and also deciding if any treatment options that have not been proposed by the health practitioner will be requested).

 

2. The Health Care Consent Act, 1996

(a) Introduction

In Ontario, consent to health care and related services is governed by the HCCA. This Paper focuses on the law of consent to “treatment” as that term is defined in the HCCA. A similar, but not identical, framework exists in the HCCA for consent to personal assistance services in long-term care homes and admission to care facilities (defined as long-term care homes).

 

(b) Consent to Treatment

Similar to the common law, the HCCA specifies that a health practitioner may not administer treatment unless the patient or his/her SDM has provided consent.[33] This consent may be in writing or provided orally, and may be express or implied in the circumstances.[34] The HCCA provides that consent to treatment will only be valid if:

  1. The consent relates to the treatment.
  2. The consent is informed.
  3. The consent is given voluntarily.
  4. The consent is not obtained through misrepresentation or fraud.[35]

The HCCA codifies the common law test that informed consent requires disclosure of matters that a reasonable person in the same circumstances would require in order to make a decision about the treatment. The HCCA further particularizes the “matters” about which the patient must receive disclosure:

  1. The nature of the treatment.
  2. The expected benefits of the treatment.
  3. The material risks of the treatment.
  4. The material side effects of the treatment.
  5. Alternative courses of action.
  6. The likely consequences of not having the treatment.[36]

A health practitioner is entitled to presume that consent to treatment includes consent to reasonable variations or changes in the treatment provided there is no “significant change” to the “matters” referred to above, and it is not unreasonable to form this presumption.[37]

Consent to treatment or a plan of treatment may be withdrawn at any time by either the patient or if incapable, his/her SDM.[38]

The HCCA permits consent to be given for future treatments that have not yet been proposed to the patient by the treating health care team, provided those treatments are part of a “plan of treatment”. A plan of treatment is a plan that:

(a) is developed by one or more health practitioners,

(b) deals with one or more of the health problems that a person has and may, in addition, deal with one or more of the health problems that the person is likely to have in the future given the person’s current health condition, and

(c) provides for the administration to the person of various treatments or courses of treatment and may, in addition, provide for the withholding or withdrawal of treatment in light of the person’s current health condition.[39]

Most notably, the ability to consent to treatment not presently proposed for the patient must be tied to the patient’s current health condition and the future health problems his/her current condition makes likely. In this respect, the HCCA limits consent to treatment to time-limited and contextualized decisions, grounded in the patient’s current health condition.

In the experience of ACE and DDO, health practitioners are sometimes unfamiliar with the nuances of the statutory provisions that permit patients to give informed consent to a plan of treatment, particularly where the plan of treatment includes the withholding or withdrawal of life-sustaining interventions. As will be discussed in more detail below, it appears that the HCCA plan of treatment provisions are underutilized. For example, they could be employed to address needed treatment adjustments (such as middle of the night treatment changes) while still respecting the right of the patient or SDM (if incapable) to give or refuse