Health Care Consent Act (Ontario)

The Health Care Consent Act (HCCA) is an Ontario law concerned with the capacity to consent to treatment and admission to care facilities. (i.e., informed consent).[1][2] As of 2 August 2023 on a date to be named by proclamation of the Lieutenant Governor, the act will apply to confining in a care facility.[3]

The HCCA states that a person has the right to consent to or refuse treatment if they have mental capacity. In order to have capacity, a person must have the "ability" to understand and appreciate the consequences of the treatment decision. The law says that “a person is capable with respect to a treatment, admission to a care facility or a personal assistance service if the person is able to understand the information that is relevant to making a decision about the treatment, admission or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision”.[4]

Relationship to other Acts

The HCCA exists in addition to the Ontario Mental Health Act (MHA) because, while the MHA governs detention in a psychiatric facility, the HCCA governs whether or not a person can be treated while in hospital[5] (for example, with anti-psychotic medication that can reduce symptoms of serious mental illness such as schizophrenia).

The Ontario HCCA is also relevant to the Substitute Decisions Act. A person may be found to lack capacity for personal care and need a substitute decision maker (SDM) to decide whether to consent to or refuse treatment with psychiatric medication. The law says that “a person is incapable of personal care if the person is not able to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.”[6]

HCCA and the Right to Refuse Treatment
See also: Right to refuse medical treatment

There is a widely reported Supreme Court of Canada case called Starson v. Swayze that dealt with the right of a mentally ill person to refuse treatment, even if it is in their best interests to be treated (for example, with anti-psychotic medication that would reduce delusional thinking).[7]

The majority in Starson v. Swayze ultimately decided that Starson did not lack capacity so he could make his own treatment decisions, even if his decision (to refuse anti-psychotic medication that would reduce delusional thinking) was not in his best interests. As a result, he could not be treated with psychiatric medication, even if that meant that his health deteriorated as a result.

Critics of the decision in Starson argue that, because of mental deterioration, Starson did not have the capacity to make the decision to refuse treatment, and that his right to autonomy needs to be balanced with the right to be well. See also: autonomy as opposed to paternalism or beneficence.[8][9] Autonomy is a complex concept in bioethics that has many variations.[10] For example, there is the concept of supported autonomy, that is, in order to support the autonomy of the person in the long term it may be necessary to compromise autonomy in the short term.[11]

References
  1. Jessica W. Berg (12 July 2001). Informed Consent: Legal Theory and Clinical Practice. Oxford University Press. ISBN 978-0-19-512677-8. Retrieved 14 May 2012.
  2. Hy Bloom; Michael Bay (1 March 1996). A Practical Guide to Mental Health, Capacity and Consent Law of Ontario. Carswell. ISBN 978-0-459-55396-8. Retrieved 14 May 2012.
  3. "Health Care Consent Act, 1996, S.O. 1996, c.2, Sched. A". ontario.ca. elaws. Retrieved 7 August 2023.
  4. Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A., §4, sub§1 [as of 2010-07-01].
  5. Bruce J. Winick (30 January 2005). Civil commitment: a therapeutic jurisprudence model. Carolina Academic Press. ISBN 978-1-59460-021-0. Retrieved 14 May 2012.
  6. Substitute Decisions Act, 1992, S.O. 1992, c. 30, §45.
  7. "Supreme Court of Canada - Decisions— Starson v. Swayze". Scc.lexum.org. 2003-06-06. Retrieved 2012-05-14.
  8. Metcalfe, D.H.H. (November 1988). "FOR THE PATIENT'S GOOD: The restoration of beneficence in health care". The Journal of the Royal College of General Practitioners. 38 (316): 526. PMC 1711632.
  9. O'Neill, Onora (2002). Autonomy and Trust in Bioethics. Cambridge University Press.
  10. Stephen Garrard Post (2004). Encyclopedia of bioethics. Macmillan Reference USA. ISBN 978-0-02-865916-9. Retrieved 14 May 2012.
  11. "Holdings: Consent and capacity in Ontario's civil mental health system". York University Libraries. Retrieved 2012-05-14.
  • Ontario Health Care Consent Act
  • Ontario Mental Health Act
  • Substitute Decisions Act
  • Starson v. Swayze
  • Ontario Consent and Capacity Board
  • Psychiatric Patient Advocate Office
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