Background
Informed consent
Informed consent is an important legal concept in health care and is set out in the Health Care Consent Act, 1996. In general, practitioners are required to obtain informed consent for any intervention of a therapeutic, diagnostic, preventive, palliative or other health-related purpose. Practitioners must ensure that clients receive relevant information, including information about possible risks or adverse effects and other treatment options, in order for consent to be considered informed.
Informed consent is required for all assessments and any therapy provided by a member. The principles of informed consent should be followed even when the intervention is not technically a “treatment” as defined in the Health Care Consent Act, 1996. Members should apply the principles of informed consent, therefore, to anything done for a therapeutic, preventive, palliative, diagnostic or other health-related purpose. Only in emergency situations may therapeutic interventions be undertaken without consent, e.g. when a client is suicidal.
Accuracy and specificity
The client must have received sufficient information to understand the nature of the therapy and potential risks and benefits, as well as information about other available therapeutic options and the implications of not proceeding with therapy. Information provided to clients must not misrepresent potential benefits or raise unrealistic expectations. If therapy is expected to probe troubling experiences or to cause emotional distress, this should be explained to the client and noted in the client record. If and when a therapist intends to alter his/her approach to therapy, or to use specific techniques, e.g. hypnotherapy or EMDR (eye movement desensitization and reprocessing), the technique should be explained in some detail, and noted in the clinical record. In such cases, it may be prudent to obtain written consent.
To be valid, a client’s consent must:
- be informed
- be voluntary
- be specific, i.e. based on specific relevant information, not vague generalities, and
- not involve misrepresentation or fraud.
Written consent
Health care professionals often use standardized forms to obtain written consent from clients. Members should understand that a signature on a form does not necessarily constitute informed consent. The elements of informed consent (see above) are usually obtained through discussion between the member and the client. Only following discussion can the client provide informed consent. The signature of the client is only partial evidence that s/he has provided informed consent.
Ongoing consent
Normally, psychotherapy is not a one-time intervention, but continues over a period of time or may be intermittent. Similarly, informed consent is not simply obtained at one point in time and never thought of again. Ongoing consent is implied by the continuing attendance of a client at therapy sessions. However, any change in the therapeutic approach or the techniques employed should be documented in the client record, along with a note about the client’s implied or verbal consent.
Implied consent
Consent may be written, verbal or implied. Generally, in the context of psychotherapy, consent is implied by the very attendance of a client at a therapy session. Attendance must be willing and voluntary, and the client should be informed about the process of therapy and the type of therapy or therapeutic approach normally employed by the therapist. In many instances, engaging in a dialogue with the therapist and discussing personal experiences and issues, will amount to implied consent for therapy.
Age of consent
There is no minimum age for consent. Clients under 18 years of age can, if they are capable of understanding and appreciating the consequences of their decision, give consent. For minors, consent must be considered on a caseby-case basis in light of the young person’s capacity and applicable laws.*
*The College may develop detailed guidelines on working with minors, in the future.
Incapacity
As a general principle, informed consent requires that a client be capable of providing such consent. This means that the client must be cognitively capable, i.e. able to understand the information provided, and appreciate the consequences of his/her decision.
Generally, a therapist may assume that a client is capable, and is not required to conduct a capacity assessment unless there are reasonable grounds to believe the client may not be capable. The therapist assesses the capability of the client by discussing the proposed therapy or therapeutic process with the client. The purpose is to see whether s/he understands the information, and appreciates any possible risks or consequences, including the implications of not proceeding with therapy.
It is important to understand that a client may be incapable with respect to certain issues and capable with respect to others (e.g. a client may be capable of discussing personal matters but incapable of managing their finances). When a client is found to be incapable, the therapist must identify a substitute decision-maker who can provide informed consent on behalf of the client. The substitute must be at least 16 years of age (unless s/he is the parent of a child), and must be a capable person who is willing and able to act. The substitute decision-maker is usually a spouse, parent, friend, or other relative. Potential substitutes are ranked in law, (see below for the ranking of substitutes). Normally, the person ranked highest is asked to serve as substitute decision-maker, if able and willing.
Withdrawal of consent
A client may withdraw consent at any time. Withdrawal of consent should be documented in the client record, and should include the reason for the change.
Documenting consent
It is important for members to document and date the consent process. This is done by making a note in the client record when consent was obtained orally or was implied, or by asking the client to sign a form, and by noting any specific therapeutic intervention or technique in the client record. A signed form in itself does not constitute informed consent but must also include a discussion and an understanding of the process by the client.
Rankings for the Substitute Decision-maker
The ranking of the substitute decision-maker is as follows (from highest ranked to lowest ranked):
- A court appointed guardian of the person.
- A person who has been appointed attorney for personal care. The client would have signed a document appointing the substitute to act on the client’s behalf in health care matters if the client ever became incapable.
- A person appointed by the Consent and Capacity Board to make a health decision in a specific matter.
- The spouse or partner of the client. A partner can include a same-sex partner. It may also include a nonconjugal partner (e.g. two elderly sisters who live together).
- A child of the client or a parent of the client or the Children’s Aid Society who has been given wardship of the client.
- A parent of the client who does not have custody of the client.
- A brother or sister of the client.
- Any other relative.
- The Public Guardian or Trustee if there is no one else. If there are two equally ranked substitute decision-makers (e.g. two sisters of the client), and they cannotagree, the Public Guardian and Trustee may then make the decision.
The Standard: Consent
The member ensures that informed consent is obtained from the client or his/her authorized representative on an ongoing basis. Consent may be verbal, written or implied and is documented in the client record. The therapist provides sufficient relevant information so the client understands the process of therapy, possible benefits and risks or adverse outcomes, other therapeutic options and the implications of not proceeding with therapy. This ensures that the consent is informed. In addition, the therapist ensures that the consent is voluntary, specific and does not involve misrepresentation or fraud.
Demonstrating the Standard
A member demonstrates compliance with the standard by, for example:
- providing, on an ongoing basis, relevant information to the client regarding the process of therapy, the therapist’s usual approach to therapy, therapeutic methods and/or specific techniques to be employed, potential risks or adverse outcomes of therapy, and other therapeutic options;
- documenting informed consent in the client record on an ongoing basis, indicating the manner in which the client gave his/her consent (verbally, by gesture, in writing), and briefly describing the information provided by the therapist to inform the client, and other relevant details;
- if there is reason to believe the client is incapable, identifying a capable person who is able and willing to act as substitute decision-maker and provide informed consent on behalf of the client.
See also:
Section 5 Record-keeping and Documentation
Professional Misconduct Regulation, provision 3
Note: College publications containing practice standards, guidelines or directives should be considered by all members in the care of their clients and in the practice of the profession. College publications are developed in consultation with the profession and describe current professional expectations. It is important to note that these College publicationsmay be used by the College or other bodies in determining whether appropriate standards of practice and professional responsibilities have been maintained.