Consent

COTBC Practice Standards for Consent

Date Posted: April 15, 2019

Statement of Purpose

The College of Occupational Therapists of British Columbia (COTBC) regulates the practice of British Columbia occupational therapists to “serve and protect the public” under the Health Professions Act, RSBC 1996, c. 183; the Occupational Therapists Regulation; and the College Bylaws.

​These Practice Standards for Consent assist the occupational therapist to understand the legal and ethical obligations related to obtaining consent for occupational therapy services. Used alongside COTBC’s Bylaws and Code of Ethics, as well as the Essential Competencies of Practice for Occupational Therapists in Canada (3rd ed.) and relevant statutory requirements, these practice standards serve to clarify the occupational therapist’s accountabilities and the College’s expectations regarding obtaining and maintaining consent, determining capability to give consent, and documenting the consent process and outcomes. Note that these practice standards are not a substitute for reading the relevant Acts referred to throughout the document. Rather, they are meant to be read in conjunction with them.

​Please note that these Practice Standards for Consent do not address consent related to

• • the collection and disclosure of client information,
  • participation in research, and
  • admission to a care facility.

The occupational therapist is encouraged to refer to the Practice Standards for Managing Client Information (revised 2019) and their organization’s policies and required ethics review processes for guidance in these respective areas.

Overview

​An occupational therapist respects the client’s right to make decisions about the management of their own health care. According to the BC Ministry of Health (2011), “Consent is a process that results in a voluntary agreement to permit the delivery of health care to a person”(p. 3). The occupational therapist has both ethical and legal obligations for obtaining valid consent. Ethical obligations are outlined in COTBC’s Code of Ethics and are most strongly reflected in three of its values:

• Dignity and Worth
• Individual Autonomy, and
• Honesty and Transparency.

​Legal obligations for obtaining consent from adults and minors are outlined in two key statues, the Health Care (Consent) and Care Facility (Admission) Act (HCCCFAA) and the Infants Act. Other relevant Acts include but are not limited to

• Adult Guardianship Act,
• Mental Health Act,
• Patients Property Act,
• Representation Agreement Act,
• Child, Family and Community Service Act,
• Family Law Act, and
• Residential Care Regulation under the Community Care and Assisted Living Act.

​Obtaining consent is a dynamic, ongoing communication process that ensures that clients have adequate information to make informed decisions about their care and that clients’ wishes are respected and followed. Every adult is presumed to be capable of giving, refusing, or revoking consent to health care until the contrary is demonstrated. Section 4 of the HCCCFAA outlines clients’ rights related to consent:

• the right to give consent or to refuse consent on any grounds, including moral or religious grounds, even if the refusal will result in death,
• the right to select a particular form of available health care on any grounds, including moral or religious grounds,
• the right to revoke consent,
• the right to expect that a decision to give, refuse or revoke consent will be respected, and
• the right to be involved to the greatest degree possible in all case planning and decision making.

​The HCCCFAA also outlines the necessary elements of consent, which include that

• the consent relates to the proposed health care,
• the consent is given voluntarily,
• the consent is not obtained by fraud or misrepresentation,
• the adult is capable of making a decision about whether to give or refuse consent to the proposed health care,
• the health care provider gives the adult the information a reasonable person would require to understand the proposed health care and to make a decision, including information about
  • • the condition for which the health care is proposed,
    • the nature of the proposed health care,
    • the risks and benefits of the proposed health care that a reasonable person would expect to be told about, and
    • alternative courses of health care, and
• the adult has an opportunity to ask questions and receive answers about the proposed health care (section 6).

​The HCCCFAA further provides that when “seeking an adult’s consent to health care or deciding whether an adult is incapable of giving, refusing, or revoking consent, a health care provider

• must communicate with the adult in a manner appropriate to the adult’s skills and abilities, and
• may allow the adult’s spouse, or any near relatives or close friends, who accompany the adult and offer their assistance, to help the adult to understand or to demonstrate an understanding of the [information given by the health care provider]”(section 8).

Practice Standard # 1: Obtaining and Maintaining Consent

Principle Statement:  The occupational therapist will ensure that valid consent is obtained from the client or substitute decision maker at the start of and throughout service delivery.

Practice Expectations:
The occupational therapist must do the following:

1. Respect the client’s right to make decisions regarding their own health care.

2. Presume the client is capable of giving, refusing, or withdrawing consent for occupational therapy services until the contrary is demonstrated.

3. Determine the client’s capability to give consent when a potential concern is identified (Refer to Standard #2).

4. Identify the person who is authorized to make a decision on the client’s behalf (i.e., substitute decision maker) when necessary.

5. Obtain consent directly from the client or substitute decision maker prior to providing occupational therapy services, unless there is an exception in legislation.  Examples of exceptions include
   • when urgent or emergency health care is required, the adult is incapable of consenting, and a substitute decision maker with authority to consent is not available (HCCCFAA, section 12); and
   • for preliminary assessment  or examination, such as triage, where the client indicates that they want to receive care or, “in the absence of any indication by the client, the client’s spouse, near relative or close friend indicates that he or she wants the client to be provided with care” (HCCCFAA, section 13).

6.  Provide the client and/or substitute decision maker with the information a reasonable person would require to make a decision regarding proposed occupational therapy services. The information provided is specific, sufficient, and evidence based and includes details regarding
   • the condition for which the services are proposed;
   • the nature of the proposed services, including but not limited to details such as the background and skills of the occupational therapist, the involvement of any support personnel and students, and the timing, length, costs, and expected outcomes of the services;
   • the risks and benefits of the proposed services; and
   • alternatives to the proposed services.

7. Ensure that consent is given voluntarily, without coercion, fraud, or misrepresentation.

8. Provide the client an opportunity to ask questions and receive answers about proposed health care. This includes respecting the client’s wishes to seek further information or involve others when making their decision.

9. Consider factors such as culture, language, abilities, and preferences when providing timely and appropriate information regarding proposed occupational therapy services to the client and/or substitute decision maker.

10. Recognize that consent can be given orally, in writing, or through alternative communication systems, or inferred from behaviour that implies consent.

11. Revisit consent if there are doubts regarding the client or substitute decision maker’s wishes, when the client is moving from one component of occupational therapy service to another, or when there are changes to the nature or scope of the proposed services.

12. Respect the right of the client or substitute decision maker to withdraw consent at any time and for any reason, provided that they are capable of doing so and there is no legislation that removes that right. When consent is withdrawn, the occupational therapist will seek to understand the reasons. The occupational therapist will ensure that the client or substitute decision maker understands their right to withdraw consent and the implications of withdrawing consent.

13. In very limited circumstances, base their decision about a client’s health care on what is in the best interests of that client, as the occupational therapist can best determine and in consultation with others. This occurs only when all of the following conditions apply:
    • The client is unable to provide consent.
    • There is no advance directive.
    • No substitute decision maker is readily available.
    • The care or treatment must be provided without delay (e.g., in order to preserve life or to prevent serious physical or mental harm).

14. Recognize that the occupational therapist is responsible for ensuring that valid consent was obtained when initial access to occupational therapy services was obtained through a third party consent process. This includes ensuring that the elements of consent were met and may require the occupational therapist speak directly with the client.

15. Take action if there is concern related to obtaining consent, including seeking assistance as needed.

16. Apply any workplace consent policies and procedures provided that they are consistent with legal and ethical requirements. Where they do not exist or are insufficient, advocate for, or participate in, their development.

Practice Standard # 2: Determining Capability to Give Consent

Principle Statement: When obtaining consent for service, the occupational therapist will ensure that the client is capable of giving consent.

Practice Expectations:
The occupational therapist must do the following:

1. Presume that the client is capable of giving, refusing, or withdrawing consent for occupational therapy services until the contrary is demonstrated.

2. Avoid presumptions of incapability based on factors such as a diagnosis of a psychiatric or neurological condition, a communication disorder or impairment, a disability, the client’s age, or a client’s decision to refuse an intervention.

3. When a concern is identified, apply a variety of strategies to determine a client’s capability to provide consent. This includes but is not limited to using a variety of communication strategies (e.g., using an interpreter or alternative communication systems), collaborating with the client and those close to the client, using a functional approach, assessing more than once to accommodate fluctuations in cognitive abilities, and consulting with other health professionals. When possible, the occupational therapist will support the client to make decisions that are within their capability.

4. Use clinical reasoning and base decisions regarding a client’s capability of consenting to services on whether or not the client understands the information that is relevant to make a decision regarding the proposed services, including how the information applies to their situation.

5. Use clinical reasoning and base decisions regarding a minor’s capability of consenting to services on whether or not the occupational therapist has
   • explained to the minor and has been satisfied that the minor understands the nature, consequences, and the reasonably foreseeable benefits and risks of the health care, and
   • made reasonable efforts to determine and has concluded that the health care is in the minor’s best interests.

6. Communicate to the client any findings of incapability to provide consent, the reasons, and process for challenging the determination.

7. Engage the client to the greatest degree possible when a substitute decision maker is involved. This includes telling the client about any care or treatment before it is undertaken, regardless of their ability to provide consent.

Practice Standard # 3: Documenting Consent

Principle Statement: The occupational therapist will document the receipt, refusal, or withdrawal of consent for occupational therapy service delivery, consistent with requirements outlined in COTBC’s Practice Standards for Managing Client Information. 

Practice Expectations
The occupational therapist must document the consent process including:

1. Date consent was obtained.

2. How consent was obtained (e.g., orally, in writing, through alternative communication systems, or inferred).

3. Confirmation that the elements of consent were met (e.g., per section 6 of the HCCCFAA or section 17(3) of the Infants Act).

4. Reasons for refusal or withdrawal from some or all of the services.

5. Any concerns raised during the consent process and actions taken to address them (e.g., if the client was determined to be incapable of providing consent and an authorized substitute decision maker was identified).