Health care professionals are responsible for obtaining valid consent from clients prior to administering treatment. The Health Care Consent Act, 1996 (the “HCCA”) sets out criteria which must be met in non-emergency situations in order for the consent to treatment to be valid and informed.
The following four conditions must exist in order for consent to treatment to be valid:
1. Consent must relate to the treatment
The HCCA defines treatment as “anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other health-related purpose …”. There are some exclusions to the definition such as assessments, examinations and history-taking.
2. Consent must be informed
Consent is not valid unless it is informed. In order to be informed, the health care professional must provide the client with information about:
- The nature of the treatment;
- The material side effects of the treatment;
- The expected benefits of the treatment;
- The material risks of the treatment;
- Alternative courses of action; and,
- The likely consequences of not having the treatment.
All of the client’s questions with respect to the above must be answered.
Without full information, the client does not have sufficient background to make informed health care decisions and consent may not be valid.
3. Consent must be given voluntary
The patient must be acting for him or herself. If a health care professional believes otherwise, he or she should ensure that there has been no duress or coercion.
4. Consent must not be obtained through misrepresentation or fraud
In conveying the information about the treatment to a client, the health care professional must be honest and not use misleading information in order to obtain consent.
If these four conditions are met, the health care professional must also confirm that the client is capable of consenting to the treatment proposed. A person is presumed to be capable with respect to treatment if he or she is (i) able to understand the information that is relevant to making the decision about the treatment; and (ii) able to appreciate the reasonably foreseeable consequences of the decision or lack of decision.
A detailed written consent to treatment form is a critical component of any health care professional’s practice and the elements listed above should be taken into consideration when preparing the form.