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As we discuss elsewhere, a person must be legally "capable" to make their own treatment decisions. But what then? What is a capable person (or their substitute decision-maker) entitled to know before they consent or decline to consent to a proposed treatment? This is the heart of what we call "informed consent", which is a fundamental part of how we respect patient autonomy.
In Ontario the details of "informed consent" are laid out in the Health Care Consent Act:
Elements of consent
11 (1) The following are the elements required for consent to treatment:
1. The consent must relate to the treatment.
2. The consent must be informed.
3. The consent must be given voluntarily.
4. The consent must not be obtained through misrepresentation or fraud. 1996, c. 2, Sched. A, s. 11 (1).
Informed consent
(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. 1996, c. 2, Sched. A, s. 11 (2).
Same
(3) The matters referred to in subsection (2) are:
1. The nature of the treatment.
2. The expected benefits of the treatment.
3. The material risks of the treatment.
4. The material side effects of the treatment.
5. Alternative courses of action.
6. The likely consequences of not having the treatment.
As stated above, a consent must be "informed". This means the patient is given information about the risks, benefits, alternatives, etc., and that their questions are answered to their satisfaction. Simply signing a form does not mean that a patient understood the relevant information or that they provided true informed consent. After all, what if they signed the form in English but do not really speak the language? Informed consent is about meaningful consent to the proposed treatment.
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