Obtaining Informed Consent in Ontario Essay

Total Length: 2240 words ( 7 double-spaced pages)

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Latha (2010) notes, "Legally, treatment without consent is permissible only where common law or statute provides such authority" (p. 96) and in the case of the schizophrenic patient who refuses to take the prescribed medication the question comes down to whether the person is legally capable of making a decision. If so, then he has every right to refuse treatment; if not, treatment may be given him. This is the essence of the Health Care Consent Act, which is used to determine whether such a person as the schizophrenic patient is capable of deciding for himself (Downie, Caulfield, Flood, 2011).



The two questions that must be asked with regards to the Health Care Consent Act are: 1) Is the person capable or able of understanding the data that is relevant to his making a decision regarding treatment? 2) Is the person capable or able of appreciating the likely consequences of refusing or accepting treatment? (Health Care Consent Act, 1996).



If the person is able of doing both then that person is deemed capable of making a decision on his own and the state or hospital may not give him treatment against his will. Thus, in the case of the schizophrenic patient who refuses treatment, the measure of whether treatment can be forcefully given him depends on how these two questions are answered. To give him treatment against his will if he is able to understand the information and appreciate the consequences of actions would be to violate the Health Care Consent Act.



However, if the patient is unable to process the information given him about how to make a decision regarding information or if the patient fails to appreciate the consequences of refusing or taking treatment, then the person may be deemed incompetent and treatment may be given him against his will. In these cases, even if the patient has decided in the past to not take the treatment, his incompetence will allow medical professionals the right to administer treatment if they deem that it is for his own and for society's safety.



Thus, the issue at the heart of this process is the matter of whether the patient is deemed competent to understand the issues regarding his illness and potential treatment. The Health Care Consent Act provides the framework by which this assessment may be made and the law is required to stand by that assessment. To the extent that the patient is able to make an informed decision, the law must respect that right.



A schizophrenic patient who is, however, unable to process the information and is clearly unfit to make decisions regarding his safety and the safety of others cannot be expected to act rationally or with sound judgment. In these cases, the condition of the patient is to be something that the health care practitioners are responsible for overseeing and they then have the right to administer treatment to the individual. In these cases, the rights of the patient are placed in the care of the professional care provider because it is deemed that the patient cannot be held accountable for his or her own decision-making processes.




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Information regarding patient care that is reviewed for quality assurance purposes is protected both by information access and privacy legislation in Ontario and by common law across all Canada. Specifically, it is protected by a number of Acts. For instance, there is the Personal Information Protection and Electronic Documents Act (PIPEDA) that is a federal law impacting all parts of Canada and serves to protect personal information from being shared. There is also the Quality Care Information Protection Act, which is Ontario law and which "protects the quality assurance/peer review process only if it is conducted by or for a hospital committee designated specifically as a quality of care committee to carry out the functions described by QCIPA" (OHA, 2004).



Additionally, as Cranston and Rozmus (2015) have indicated, "courts have recognized the importance of protecting QA-type records at common law" levels and this is evident in the Supreme Court case Slavutych v. Baker (1976) in which it was decided that the confidentiality is essential in all communications. However, as the Ontario Superior Court decided in Steep v. Scott (2002), "the goal of improving the quality of health care and health services ahead of any litigation advantage that may accrue to a party by the use of QA-type records" is given precedent (Cranston, Rozmus, 2015, p. 2). Thus, while laws and court rulings do exist, the basic concept of balancing health assurance with privacy rights is one that is constantly being monitored and re-assessed in Ontario.



The aim of this balancing act is to allow and encourage health care providers to learn about and improve upon the ways in which quality assurance can be delivered and to use data to make the situation better continuously. At the same time, the goal is to prevent negligence and respect patient rights and allow injured parties to pursue legal recourse. Privacy rights do matter in Ontario just as much as quality assurance concerns do. The laws that have developed by in Ontario and throughout Canada that are used to reflect this need to balance both portions of this societal issue are evidence that the topic is not easily navigated or maneuvered in every instance or occasion (Downie, Caulfield, Flood, 2011).



Thus, it is necessary to protect quality assurance information to ensure the full involvement of health professionals in the process of quality improvement -- but it is also important to protect the rights of patients and prevent negligence from occurring, allowing them legal recourse. The nature of the issue is such that every case must be examined and the facts made to come to light in order to make a decision in favor of health care professionals or patients. There is no simple solution or sweeping legislation that can serve as a general rule for every case.



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The case of Hassan Rasouli is one court case that has addressed the issue of who should have final say with respect to the….....

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References


Cancer View. (2015). Collecting and Banking Pediatric Brain Tumor Research Specimens. Retrieved from http://www.canadiancancertrials.ca/trial/Default.aspx?Trialid=NCT00228748&lang=en

Cranston, D., Rozmus, A. (2015). Quality Assurance Records and Common Law Privilege: Balancing Competing Interests. CBA.org. Retrieved from http://www.cba.org/cba/cle/PDF/HEALTH11_Cranston_PaperOutline.pdf

Downie, J., Caulfield, T., Flood, C. (2011). Canadian Health Law and Policy. CA: LexisNexis Canada.

Health Care Consent Act. (19916). Ontario. Retrieved from https://www.ontario.ca/laws/statute/96h02

Latha, K. (2010). The noncompliant patient in psychiatry: The case for and against covert/surreptitious medication. Mens Sana Monogr, 8(1): 96-121.

OHA. (2004). Quality of Care Information Protection Act. OHA. Retrieved from https://www.oha.com/Knowledgecentre/Library/Toolkits/Documents/QCIPAToolkit.pdf

Petch, J., Laupacis, A. (2013). Conflict at the end of life: what happens when doctors and families disagree. Healthydebate. Retrieved from http://healthydebate.ca/2013/11/topic/politics-of-health-care/conflict-at-the-end-of-life

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