Consent to Treatment - Since - CONSENT TO TREATMENT - HANDOUT.pdf · Agenda Introduction to PLP Consent…

Embed Size (px)

Text of Consent to Treatment - Since - CONSENT TO TREATMENT - HANDOUT.pdf · Agenda Introduction to PLP...

  • Consent to Treatment

  • Agenda

    Introduction to PLP

    Consent to treatment

    Principles

    Elements

    Express versus implied consent

    Capacity

    Common law of informed consent to treatment

    Standard of Care

    Causation

    Documentation and evidence of consent

  • PLP

  • PLP Professional Staff

    Director Ren Brewer

    Senior Dental Consultant Dr. Judi Heggie

    Senior Professional Liability Advisor Alan Lachapelle

    Professional Liability Advisor Sonia Gregoris

    Legal Advisor Robert H. Feldman

    Law Clerks Michelle Canning-Choi

    Natalee Pink

  • Mutual defence organization

    Providing professional liability protection and risk management advice to Ontario dentists since 1973

    Separate from regulatory arm of RCDSO

    What is PLP?

  • Provide advice on dealing with dissatisfied, angry, threatening patients

    Assist members in refunding fees

    Assist members in settling claims or potential claims (either behind the scenes or directly with patient or representative)

    Provide individual and group risk management advice

    Services

  • $2 million per occurrence (legal costs and damages)

    Up to $23 million excess available for total protection of $25 million

    Acts and omissions in course of practicing dentistry

    Includes vicarious liability for staff BUT all regulated health professionals must have individual liability protection

    Protection

  • Who is protected:

    Members

    Former members (provided treatment rendered while a member)

    Partnerships (all partners must be members)

    Health profession corporations

    Who is excluded:

    Staff who has or is required to have his/her own liability protection (physicians, nurses and hygienists)

    Corporations other than health profession corporations (technical services corporations are not protected through PLP)

    Protection

  • What is included:

    Dental services that were performed or ought to have been performed in Ontario, provided that those services are reasonably considered to be part of, related to, or ancillary to the practice of dentistry

    What is excluded:

    Refunds

    Fines and penalties

    Intentional criminal acts

    Punitive, aggravated and exemplary damages

    Proceedings other than civil suits (PCRA and Human Rights Tribunal)

    Treatment provided outside of Ontario

    Protection

  • Deductibles

    Minimum Individual Deductible - $2,000

    Step-up Individual Deductible - $5,000 for the second claim, $10,000 for the third claim and $20,000 for each and every additional claim in the preceding 7 years

    Member can request reduction or waiver in certain circumstances

  • Reporting does not trigger deductible

    Deductible triggered if PLP

    pays a claim

    incurs defence costs

    incurs expert fees

    Deductibles (contd)

  • Cost

    2014 RCDSO fees - $2,035 Includes registration and malpractice protection

    No increase if more than one claim

    Approximately the same as CDSPI malpractice premium for $3 million per occurrence protection with $9 million annual cap

    No annual limit/cap with PLP

  • CONSENT TO TREATMENT

  • Treatment means anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other health-related purpose, and includes a course of treatment, plan of treatment or community treatment plan

    Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A., s. 2(1)

    Treatment

  • No Treatment Without Consent

    10.(1) A health practitioner who proposes a treatment for a person shall not administer the treatment, and shall take reasonable steps to ensure that it is not administered, unless,

    (a) he or she is of the opinion that the person is capable with respect to the treatment, and the person has given consent.

    Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A

  • 2. The following are acts of professional misconduct for the purposes of clause 51 (1)(c) of the Health Professions Procedural Code:

    7. Treating a patient for a therapeutic, preventative, palliative, diagnostic, cosmetic or other health-related purpose in a situation in which a consent is required by law, without such a consent.

    Dentistry Act, 1991, S.O. 1991, c. 24, Ontario Regulation 853/93

  • Everyone has the right to decide what is to be done to ones own body. This includes the right to be free from medical treatment to which the individual does not consent.

    Ciarlariello v. Schacter, [1993] 2 S.C.R. 119

  • A competent adult is generally entitled to reject a specific treatment or all treatment, or to select an alternate form of treatment, even if the decision may entail risks as serious as death and may appear mistaken in the eyes of the medical profession or of the community. Regardless of the doctors opinion, it is the patient who has the final say on whether to undergo treatment.

    Malette v. Shulman, [1990] O.J. No. 450

  • Consent Can Be Withdrawn

    14. A consent that has been given by or on behalf of the person for whom the treatment was proposed may be withdrawn at any time,

    (a) by the person, if the person is capable with respect to the treatment at the time of the withdrawal;

    (b) by the persons substitute decision-maker, if the person is incapable with respect to the treatment at the time of the withdrawal.

    Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A

  • The individual has the right to determine whether or not to accept treatment and putting and keeping someone on a respirator and without an informed consent is an improper interference with the person.

    Nancy B. v. Htel-Dieu (1992), 86 D.L.R. (4th) 385

  • Assault

    A person commits an assault when:

    (a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly.

    Criminal Code, R.S.C. 1985, c. C-46, s. 265(1)

  • [A]ctions of battery in respect of surgical or other medical treatment should be confined to cases where surgery or treatment has been performed or given to which there has been no consent at all or where, emergency situations aside, surgery or treatment has been performed or given beyond that to which there was consent.

    Reibl v. Hughes, [1980] 2 S.C.R. 880

    Battery

  • Battery

    A 22 year old woman sued a doctor and a dentist for the unauthorized extraction of numerous teeth during a tonsillectomy on October 12, 1943.

    The patient had only consented to the extraction of two upper teeth. While she was under anesthesia, the dentist extracted all her upper teeth and one lower tooth because he detected tooth decay and disease.

    The health practitioners were found liable for battery and the patient was awarded $5,200 in damages (approximately $72,000 in 2014).

    Parmley v. Parmley, [1945] S.C.R. 635

  • [A]ctions of battery in respect of surgical or other medical treatment should be confined to cases where surgery or treatment has been performed or given to which there has been no consent at all or where, emergency situations aside, surgery or treatment has been performed or given beyond that to which there was consent.

    Reibl v. Hughes, [1980] 2 S.C.R. 880

    Emergency Treatment

  • Meaning of emergency

    25.(1) For the purpose of this sectionthere is an emergency if the person for whom the treatment is proposed is apparently experiencing severe suffering or is at risk, if the treatment is not administered promptly, of sustaining serious bodily harm.

    Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A

  • Emergency treatment without consent: incapable person

    25.(2) [A] treatment may be administered without consent to a person who is incapable with respect to the treatment, if, in the opinion of the health practitioner proposing the treatment,

    (a) there is an emergency; and

    (b) the delay required to obtain a consent or refusal on the persons behalf will prolong the suffering that the person is apparently experiencing or will put the person at risk of sustaining serious bodily harm.

    Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A

  • No treatment contrary to wishes

    26. A health practitioner shall not administer a treatment under section 25 if the health practitioner has reasonable grounds to believe that the person, while capable and after attaining 16 years of age, expressed a wish applicable to the circumstances to refuse consent to the treatment.

    Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A

  • 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.

    Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A

  • 1. Consent must relate to the treatment

    Treatment that is different from or goes beyond the consent provided by the patient or the patients substitute decision-maker may give rise to an allegation of battery.

    Reibl v. Hughes, [1980] 2 S.C.R. 880

  • 2. Consent must be informed

    Informed consent

    11.(2) A consent to treatment is informed if, before giving it,

    a) the person received the information about the matters se