Informed Consent in Canada - What does it mean for me?
What is Informed Consent?
Informed consent is a process of communication between you and your health care provider. This conversation should lead to permission for care, treatment, or services.
Did you know to also have the right to get information and ask questions before procedures and treatments?
Or that you are legally entitled to your medical files?
Yep! Knowledge is power.
Styles of Consent Practiced in Canadian Western Medicine
According to the Canadian Medical Protective Association, physicians may consider two styles of consent, implied and expressed.
Implied consent is subjective and can lead to legal trouble should it be misinterrpreted, not to mention trauma for the patient. Much of the work physicians are trained to do falls under implied consent according to the CMPA. By virtue of agreeing to book and show up for an appointment for a physical for example, surely the Physician could just go ahead and perform all aspects of the physical?
Ooof. Where’s the communication? Where’s the consent? Where’s the option to change your mind or advocate for yourself?
Expressed consent on the other hand, is written or oral consent to treatment.
Often times, care providers use this language for what they consider expressed consent,
“Scoot your bum all the way down for me”For me. Do you hear that kind of language at your appointments? Who is this appointment actually geared towards? Or “We need to do x y z, ok?” The ok at the end seals the deal. There’s not really any space for discussion is there? There’s not really an out, it feels like it’s already happening and been decided. If you really want to dive deep into how this plays out in the medical system, investigate birth practices and talk to any doula.
what expressed oral consent could sound like,
“I would like to listen to your breathing. In order to do so, I use my stethescope and place it in these spots above/underneath your clothing/gown. I’ll ask you to take deep breaths and/or breathe normally and I’ll cue you for each position for my scope. If you need a break or want to stop, we can do that at any time, just raise your hand or say stop. Any questions about this? Are you ok if I begin?”
You can tell by this small example, that oral informed consent, might take some time and a 5 minute appointment is probably not enough to provide what is required to agree to treatment let alone gather any information about your health. Even in birth, it is rare that there is not room for conversation and questions in order to make an informed decision on how to proceed in an “emergency” situation. However, the feeling illicited by the tone of the care providers, the white coat power dynamic, and the “death” carrot dangling in front of us, makes us feel like we have no other choice but to agree and act now.
So, what does consent mean legally?
In our current political climate, which includes decisions in our justice system, we’re seeing an ever-changing approach to informed consent with shifting goal posts, however, we can look at current legislation created which supports those decisions. For example,
Ontario’s Health Care Consent Act, 1996* states that the following are the elements required for consent to treatment:
(a) consent must relate to the treatment;
(b) consent must be informed;
(c) consent must be given voluntarily; and,
(d) consent must not have been obtained through misrepresentation or fraud
Section 11 also confirms that a consent is informed if, before giving it:
(a) the person received the information about the nature of the treatment, the expected benefits of the treatment, the material risks and side effects of the treatment, and the likely consequences of not having the treatment that a reasonable person in the same circumstances would require in order to make a decision; and
(b) the person received responses to his or her requests for additional information about those matters.
You can do a deeper dive into the cases by using our friend Google, but overall, it’s pretty clear that legally, all the way up to the Supreme Court level, a doctor is obligated to provide sufficient information to allow a patient to make an informed decision on proposed treatment. That being said, how many people who feel consent was not granted to them, are available financially, physically, emotionally, mentally, spiritually, to take on one of the most protected and lucrative professions and industries in the world in order to seek justice and reparations?
It’s also clear that the justice system, incredibly similar to the medical system is broken and no longer serve the people they purport to work for.
You are in charge. It’s your body and your life.
Remember, there’s no such thing as a stupid question. You are literally paying your health care practioner to help you, so put them to work. A good health care practioner won’t mind and will be excited to share what’s going on in their decision making process with you.
Here are 6 ways to help you give Informed Consent
One of the most influential statments I used with clients as a doula was, it’s not a confrontation, it’s a conversation. This is where we start. We should never have to feel like we’re going into battle with our care providers. So I recommend my clients always start with a conversation.
Ask your health care provider for their definition of informed consent - with examples of language, paperwork, and practices they may use in an appointment with you.
When exploring treatment, ask what the risks and benefits are for each protocol prescribed as well as what the outcomes (risks and benefits) would be if you did not follow said protocol
Request access to information related to your practioner’s protocol suggestion. This can be evidence based scholarly articles, referrals to specialists or other practioners, referral for a second opinion, or testimonials and personal stories from real people who’ve received treatment
Take your time. Leave the appointment with the information and book back another time to follow up so you can receive answers to your questions or further material.
Seek privacy. It can feel incredibly intimidating to discuss your options in front of your care provider, especially if you feel they may be offened, or disagree. Ask for them to leave the room and come back in ___ mins. Whatever feels appropriate for your situation.
Ask for clarification. If the decision making is required sooner than later, ask for clarification. Reframe the information into a question. Examples include, “So, why are you recommending _____ for ______ again?”, “Can you remind what you said about the side effects for ___________?” “What happens if we don’t do xyz?”.
