Area of Law: Health Law
Answer # 706
Refusing or appealing a treatment decisionRegion: Ontario Answer # 706
Generally, unless it is an emergency situation, a health care professional must always obtain a patient’s consent before starting any treatment or procedure.
In Ontario as in most provinces, a patient of 16 years of age or older, who is mentally competent, normally has the sole right to refuse or consent to any health care treatment — even if the refusal increases the seriousness of the illness or the possibility of death.
For anyone under the age of medical consent, a parent’s or guardian’s consent is usually needed. Nonetheless, if a medical practitioner believes a minor understands the nature of the treatment and its consequences and it is in his or her best interests, the minor’s consent can be enough. If a minor is incapable of giving consent and parents are not available, a legally qualified medical practitioner can make the decision in an emergency. If parents refuse consent or consent is unattainable, any person may also apply to a court for consent.
Under the Health Care Consent Act, even people who have been declared mentally incompetent may also refuse treatment if they inform a health practitioner that they intend to apply to a government review body for a review of the incapacity finding. In Ontario, appealing a capacity decision to the Consent and Capacity Board is a complex procedure. If possible, it is advisable for the individual to obtain the assistance of a lawyer.
Informed consent required
In addition, a patient can only legally consent to health treatment if he or she has been properly informed about the procedure in advance. This includes a full explanation of the treatment, the risks associated with the treatment, the risks of not accepting treatment, and information about alternative treatments.
The right to ask questions about treatment
If a health care professional does not provide the patient with information before treatment, the person has the right to ask questions to fully understand all of the choices and the risks involved. It is usually a good idea for the patient to prepare questions before arriving at the appointment. The patient also has the right to refuse treatment or request a referral for other medical opinions.
Waiving legal rights upon consent to treatment
Before signing a form acknowledging consent to treatment, it is advisable for the patient to read it carefully in order to make an informed decision. In serious cases, if the patient is unsure about consenting, or if the person is being asked to waive any rights, he or she may want to consult a lawyer.
Treatment without consent
If a health care professional provides treatment to someone without his or her consent, the patient can register a complaint by calling the organization responsible for reviewing the health care professional’s conduct and which has the authority to conduct investigations and disciplinary hearings. In serious cases, where consent was not obtained and the patient suffered damages as a result of the treatment, the patient may decide to sue the health care provider for malpractice.
It is important to remember that the patient’s consent, or that of their guardian or substitute decision-maker, may be withdrawn at any time. The only exceptions are in cases where withdrawal may create serious problems, endanger the patient’s life, or when the patient no longer has the physical or mental capacity to withdraw consent.
More information about health care and consent can be found from the professional organization for doctors – The College of Physicians and Surgeons. For the names and telephone numbers of other health professional organizations, contact the Ministry of Health and Long-Term Care or visit its website at health.gov.on.
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