Consent to Treatment - Toronto Academy of …

1 Consent to Treatment Agenda Introduction to PLP Consent to Treatment Principles Elements Express versus implied Consent Capacity Common law of informed Consent to Treatment Standard of Care Causation Documentation and evidence of Consent PLP PLP professional Staff Director Ren Brewer Senior Dental Consultant Dr. Judi Heggie Senior professional liability Advisor Alan Lachapelle professional liability Advisor Sonia Gregoris Legal Advisor Robert H. Feldman Law Clerks Michelle Canning-Choi Natalee Pink Mutual defence organization Providing professional liability protection and risk management advice to Ontario dentists since 1973 Separate from regulatory arm of RCDSO What is PLP? Provide advice on dealing with dissatisfied, angry, threatening patients Assist members in refunding fees Assist members in settling claims or potential claims (either behind the scenes or directly with patient or representative) Provide individual and group risk management advice Services $2 million per occurrence (legal costs and damages) Up to $23 million excess available for total protection of $25 million Acts and omissions in course of practicing dentistry Includes vicarious liability for staff BUT all regulated health professionals must have individual liability protection Protection Who is protected: Members Former members (provided Treatment rendered while a member) Partnerships (all partners must be members) Health profession corporations Who is excluded.

2 Staff who has or is required to have his/her own liability protection (physicians, nurses and hygienists) Corporations other than health profession corporations (technical services corporations are not protected through PLP) Protection What is included: Dental services that were performed or ought to have been performed in Ontario, provided that those services are reasonably considered to be part of, related to, or ancillary to the practice of dentistry What is excluded: Refunds Fines and penalties Intentional criminal acts Punitive, aggravated and exemplary damages Proceedings other than civil suits (PCRA and Human Rights Tribunal) Treatment provided outside of Ontario Protection Deductibles Minimum Individual Deductible - $2,000 Step-up Individual Deductible - $5,000 for the second claim, $10,000 for the third claim and $20,000 for each and every additional claim in the preceding 7 years Member can request reduction or waiver in certain circumstances Reporting does not trigger deductible Deductible triggered if PLP pays a claim incurs defence costs incurs expert fees Deductibles (cont d)

3 Cost 2014 RCDSO fees - $2,035 Includes registration and malpractice protection No increase if more than one claim Approximately the same as CDSPI malpractice premium for $3 million per occurrence protection with $9 million annual cap No annual limit/cap with PLP Consent TO Treatment Treatment means anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other health-related purpose, and includes a course of Treatment , plan of Treatment or community Treatment Health Care Consent Act, 1996, 1996, c. 2, Sch. A., s. 2(1) Treatment No Treatment Without Consent 10.(1) A health practitioner who proposes a Treatment for a person shall not administer the Treatment , and shall take reasonable steps to ensure that it is not administered, unless, (a) he or she is of the opinion that the person is capable with respect to the Treatment , and the person has given Consent .

4 Health Care Consent Act, 1996, 1996, c. 2, Sch. A 2. The following are acts of professional misconduct for the purposes of clause 51 (1)(c) of the Health Professions Procedural Code: .. 7. Treating a patient for a therapeutic, preventative, palliative, diagnostic, cosmetic or other health-related purpose in a situation in which a Consent is required by law, without such a Consent . Dentistry Act, 1991, 1991, c. 24, Ontario Regulation 853/93 Everyone has the right to decide what is to be done to one s own body. This includes the right to be free from medical Treatment to which the individual does not Consent . Ciarlariello v. Schacter, [1993] 2 119 A competent adult is generally entitled to reject a specific Treatment or all Treatment , or to select an alternate form of Treatment , even if the decision may entail risks as serious as death and may appear mistaken in the eyes of the medical profession or of the community.

5 Regardless of the doctor s opinion, it is the patient who has the final say on whether to undergo Treatment . Malette v. Shulman, [1990] No. 450 Consent Can Be Withdrawn 14. A Consent that has been given by or on behalf of the person for whom the Treatment was proposed may be withdrawn at any time, (a)by the person, if the person is capable with respect to the Treatment at the time of the withdrawal; (b)by the person s substitute decision-maker, if the person is incapable with respect to the Treatment at the time of the withdrawal. Health Care Consent Act, 1996, 1996, c. 2, Sch. A The individual has the right to determine whether or not to accept Treatment and putting and keeping someone on a respirator and without an informed Consent is an improper interference with the person. Nancy B. v. H tel-Dieu (1992), 86 (4th) 385 Assault A person commits an assault when: (a) without the Consent of another person, he applies force intentionally to that other person, directly or indirectly.

6 Criminal Code, 1985, c. C-46, s. 265(1) [A]ctions of battery in respect of surgical or other medical Treatment should be confined to cases where surgery or Treatment has been performed or given to which there has been no Consent at all or where, emergency situations aside, surgery or Treatment has been performed or given beyond that to which there was Consent . Reibl v. Hughes, [1980] 2 880 Battery Battery A 22 year old woman sued a doctor and a dentist for the unauthorized extraction of numerous teeth during a tonsillectomy on October 12, 1943. The patient had only consented to the extraction of two upper teeth. While she was under anesthesia, the dentist extracted all her upper teeth and one lower tooth because he detected tooth decay and disease. The health practitioners were found liable for battery and the patient was awarded $5,200 in damages (approximately $72,000 in 2014).

7 Parmley v. Parmley, [1945] 635 [A]ctions of battery in respect of surgical or other medical Treatment should be confined to cases where surgery or Treatment has been performed or given to which there has been no Consent at all or where, emergency situations aside, surgery or Treatment has been performed or given beyond that to which there was Consent . Reibl v. Hughes, [1980] 2 880 Emergency Treatment Meaning of emergency 25.(1) For the purpose of this is an emergency if the person for whom the Treatment is proposed is apparently experiencing severe suffering or is at risk, if the Treatment is not administered promptly, of sustaining serious bodily harm. Health Care Consent Act, 1996, 1996, c. 2, Sch. A Emergency Treatment without Consent : incapable person 25.(2) [A] Treatment may be administered without Consent to a person who is incapable with respect to the Treatment , if, in the opinion of the health practitioner proposing the Treatment , (a) there is an emergency; and (b) the delay required to obtain a Consent or refusal on the person s behalf will prolong the suffering that the person is apparently experiencing or will put the person at risk of sustaining serious bodily harm.

8 Health Care Consent Act, 1996, 1996, c. 2, Sch. A No Treatment contrary to wishes 26. A health practitioner shall not administer a Treatment under section 25 if the health practitioner has reasonable grounds to believe that the person, while capable and after attaining 16 years of age, expressed a wish applicable to the circumstances to refuse Consent to the Treatment . Health Care Consent Act, 1996, 1996, c. 2, Sch. A Elements of Consent 11.(1) The following are the elements required for Consent to Treatment : Consent must relate to the Treatment . Consent must be informed. Consent must be given voluntarily. Consent must not be obtained through misrepresentation or fraud. Health Care Consent Act, 1996, 1996, c. 2, Sch. A 1. Consent must relate to the Treatment Treatment that is different from or goes beyond the Consent provided by the patient or the patient s substitute decision-maker may give rise to an allegation of battery.

9 Reibl v. Hughes, [1980] 2 880 2. Consent must be informed Informed Consent 11.(2) A Consent to Treatment is informed if, before giving it, a)the person received the information about the matters set out in subsection (3) that a reasonable person in the same circumstances would require in order to make a decision about the Treatment ; and b)the person received responses to his or her requests for additional information about those matters. (3) The matters referred to in subsection (2) are: nature of the Treatment . expected benefits of the Treatment . material risks of the Treatment . material side effects of the Treatment . courses of action. likely consequences of not having the Treatment . Health Care Consent Act, 1996, 1996, c. 2, Sch. A 3. Consent must be given voluntarily A physician who provided pain killers to a drug addicted patient in exchange for sexual favours was found liable in battery since the patient did not voluntarily Consent to the sexual activity in light of the power imbalance between the parties and her vulnerability.

10 Norberg v. Wynrib, [1992] 2 226 4. Consent must not be obtained through misrepresentation or fraud A patient consented to an operation on his 3rd vertebrae, but the surgeon mistakenly operated on the 4th vertebrae. The surgeon subsequently obtained Consent for a second operation, but he didn t tell the patient the additional operation was necessary because of his error in performing the first surgery. This omission was considered a deliberate misrepresentation which vitiated the patient s Consent to the second operation, thus rendering it a battery. The patient was awarded $40,000 in punitive damages (approximately $57,000 in 2014). Gerula v. Flores (1995), 126 (4th) 506 The responsibility to obtain patient Consent rests with the treating health practitioner. The task of securing Consent can be delegated but the responsibility for ensuring that Consent has been obtained remains with the person providing the Treatment .