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HEALTH CARE LAW: Law 3101 & Health Sciences 3101

WINTER TERM, 2015,

R. Solomon, Professor The Faculty of LawWestern University

Chapter II: Consent and Capacity (Competency) Overview

Common Law Principles of Consent Common Law Principles of Consent.

Health Care Consent Act, 1996.

Consent Forms.

Capacity to Consent to Personal Care.p y

Prior Expressed Wishes.

Minors and Statutory Ages of Consent.

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Introduction

Need precision who is giving consent to whom for what? Is the patient 14, 92, high, or mentally ill? Is the professional a school counsellor or a psychiatrist? Does the consent relate to treatment, personal assistance

services, admission to a long-term care home, or the release of patient information?

The principles of consent and capacity focus on autonomy.

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(a) General Principles The patients consent is required before any treatment,

elli e i de t ke The e t h ld

Part 1: Common Law Principles of Consent

counselling or care is undertaken. The consent should covernot only proposed treatment but all info about treatment.

Consent must relate to the specific treatment undertaken. Atcommon law, a practitioners mistaken belief in consent is nodefence.

If the patient is capable, his or her consent alone isrequired and the consent of the patients substitute decisionrequired, and the consent of the patient s substitute decisionmaker is irrelevant.

Consent must be given voluntarily, in the sense of being theproduct of the patients conscious mind. A reluctant consentis valid consent (e.g. parolee, probationers, etc.).

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StanisSticky NoteCounselling will most likely be held liable for the flow of information

StanisSticky NoteThe consent must relate to the specific procedure. So if there is consent to foot surgery, you can't operate on the spine.

If you undertake the procedure under the mistaken belief that the patient consented when they didn't, it is no defence under the Common Law.

StanisSticky NoteIf the patient is capable, you need the patient's consent and their consent alone. There is no or very few statutes which impose a statutory age of consent. When the new health legislation was enacted, there is no statutory age of consent in ONtario. If the patient is capable, nothing is stopping them from making healthcare decisions.

Healthcare professionals can encourage the patient to involve their parents, but if the patient says no, the patient wins.

A power of attorney has no power for legal decisions until there is a finding of incapacity.

If I am capable, the consent of other people are irrelevant. If the patient is capable, only the patient's consent is needed.

First thing to think about is consent, the second thing is capacity

StanisSticky NoteThis is a very low threshold. The mere fact that you come to treatment because your boyfriend will leave you, your boss will fire you, or your principal will expel you, is voluntary.

If I am an addiction counselor, and you are an addict, and you're only coming because it's necessary for probation still counts as a voluntary decision.

Why do we define it at such a low threshold? To protect the autonomy of the individual. It's not the job of the physician to judge the motives of you seeking treatment. So a voluntary decision is any decision of their conscious mind.

What if is the healthcare professional who is pressuring the person? If you decide to have healthcare treatment because the healthcare professional is encouraging you, it is volition. If he's exploiting the patient, then it is still voluntary even though the physician may have troubles with their college.

If the person is unconscious, they're not making decisions. But a person who is drunk may still make consent decisions.

Duress ( a threat of immediate harm ) may negate consent. Anything less than an immediate threat of physical harm counts as consent.

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Consent must be based on a full and frank disclosure of thenature of the proposed treatment, and its risks, benefits andalternatives. There is increasing emphasis on puttingproposed treatments in the context of the alternatives,including doing nothing.

Unless a statute provides otherwise, consent may be givenexplicitly (written or oral) or implicitly.

Patients may explicitly limit treatment.

Health practitioners can refuse to provide treatment if thelimits the patient imposes render that treatment futile orlimits the patient imposes render that treatment futile ordangerous.

Battrum v. British Columbia.

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(b) Exceptions to Common Law Principles of Consent

In an unforeseen medical emergency where it is impossibleto obtain consent or a refusal of consent, health practitionersmay intervene in an attempt to safe the life, and preserve they p , phealth of the individual.

Consent to surgery, an overall course of treatment or atreatment plan provides consent to subordinate or technicalprocedures that are an inherent part of the surgery, course oftreatment or treatment plan.

At ti h i i h d th ti i il t At one time, physicians had a therapeutic privilege towithhold information from patients if they believed thatdisclosure would undermine the patients morale, such thatthe patient would not have needed the essential treatment.

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StanisSticky NoteNot only do they have to be aware of the risk of the procedure, you also have to explain the risks and benefits of the alternatives of other options, including doing nothing. The individual must be allowed to make an informed decision.

StanisSticky NoteIn many circumstances, the fact that a person comes into an appointment, answers questions, etc, will imply consent.

Many agencies require written consent, this isn't law, it's management policy. The Common Law simply requires consent which may be implicit or explicit, written or oral.

It is prudent to require express consent or written consent if the proposed procedure involves significant risk of physical harm,, if the treatment is non-traditional, legally, sexually, or emotionally sensitive, or if the patient is challenging.

StanisSticky NoteA patient can limit the treatment in whatever way. The jehovah's witness may refuse blood transfusion, an anorexic may refuse consent to feedings, may refuse anti-psychotic medication, etc.

As a healthcare professional, you are under no obligation to provide treatment that are futile, and under obligation to not provide treatment that is harmful.

So the patient can put any limitation, but the physician is under no obligation to acquiesce

Doctors are only expected to know the reasonable alternatives

StanisSticky NoteThe plaintiff fell off a horse and injured her shoulder. She called 911 and firemen and the paramedic came. She wanted to go to the hospital.

the paramedic took her vital signs and sstabilized her shoulder so she could be transported to the hospital. The plaintiff did not like the paramedic and described him as abrupt and unsympathetic, and described him as being a lout. She then sued him for battery.

When the judge stopped laughing, he said when you called 911, with a broken shoulder and asked to be taken to the hospital, you are implicitly consenting to the paramedic to touch to fulfill her request.

StanisSticky NoteMarshal and Curry,

Marshal a sea captain went in for a hernia operation. During the operation, the surgeon realized that one of the testicles was infected and filled with pus. Rather than leaving it there, the surgeon removed it. When the captain realized, he sued because the surgeon had no consent. The court said that in a medical emergency and it is impossible to get consent, the medical practitioner is allowed to operate.

This is reserved for immediate emergencies. If the testicle was left in, there was a chance for blood poisoning. it has to be a significant risk, not necessarily life or death

The right to intervene applies to everyone in the society, not just healthcare professionals. It only applies in an unforeseen medical emergency however, when it is impossible to obtain consent or a refusal of consent.

If a Jehovah's witness with a card that says no blood transfusions, then this principle doesn't apply because there is express refusal of consent.

StanisSticky NoteIf you consent to a treatment plan, then there is no longer a need for consent for every subordinate procedure that is an inherent part of that treatment plan.

StanisSticky NoteAt one time, our courts said that doctors had therapeutic right to withhold information from a patient if a doctor had reasonable reason to believe that it would undermine the patient's morale so that the patient is less likely to undergo a needed treatment.

This was in a time when paternalistic notions of healthcare was rampant. This principle of withholding information has been increasinly narrowed by the courts.

Recently, it has been decided to be wholly incompatible with the patient's right to make their own decisions in regard to their own healthcare. More recently, a court claims that it exists, but it is now extremely narrow. It's just a matter of time until it becomes no longer a part of the law of Ontario.

Better to assume that the law doesn't exist.

The patient's condition must be so precarious that the disclosure of the information would invariably cause unnecessary harm.

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Part 2: Health Care Consent Act, 1996 (HCCA)

(a) Introduction

(b) The Scope and Structure of the HCCA

Part II of the HCCA applies to treatment, which is broadlydefined, but subject to numerous exceptions (e.g. taking ahistory, treatment that involves little or no risk, admission to atreatment facility, and examinations to assess generalcondition).

Part II applies to regulated health practitioners but not Part II applies to regulated health practitioners, but notsocial workers, youth workers, addiction counsellors, andothers.

Part II also governs substitute consent to general andemergency admission to hospitals and psychiatric hospitals.

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Part III governs substitute consent to admission to a carefacility (i.e. a long-term care home).

Part IV governs substitute consent to personal assistanceservices (i.e. activities of daily living washing, eating, etc.)

Part V governs the Consent and Capacity Board (CCB). The HCCA does not apply to: various orders of a medical officer of health relating to

communicable or virulent diseases; regulations governing communicable diseases in the eyes of

newborns;newborns; substitute consent to research, non-medical sterilizations, and

organ and tissue transplantation; and the common law duty of caregivers to confine and restrain a

person to prevent serious bodily harm.32

StanisSticky NoteDisplaces common law principles but only according to certain decisions, and only applies to certain healthcare professionals.

Applies to some people in some circumstances

StanisSticky NoteApplies to treatment. This is a very broad statement, but there is a lot of exceptions. Doesn't apply to first aid and a bunch of other things.

StanisSticky NoteOnly to regulated health practitioners. A doctor that is providing counselling is covered under the HCCA, but a youth consellor providing the same service is under the common law.

If a healthcare provider believes that a non-treatment is treatment, then it is considered as treatment.

StanisSticky NoteApplies to emergency admissions to hospitals and psychiatric facilities, but only in regards to substitute consent.

So if you're capable, and you don't want to go to a hospital, then part II doesn't apply.

StanisSticky NoteIf capable, then under the common law

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(c) General Principles of Consent under the HCCA Practitioner must be of the opinion that the patient was

capable and consented, or of the opinion that the patient wasincapable and his or her substitute decision maker consented.El f lid Elements of a valid consent. Consent must relate to proposed treatment. Consent must be informed.

Questions must be answered honestly. Affirmative obligation to provide information about the

nature, expected benefits, material risks and side effects ofthe proposed treatment and information about alternativesthe proposed treatment, and information about alternativesand likely consequences of not having the treatment.

Consent must be given voluntarily. Consent may be given expressly or implicitly. Consent must not be obtained by misrepresentation or fraud.

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Consent to treatment includes variations and adjustmentsthat pose similar risks and benefits.

Consent to a treatment plan obtained by one practitionerprovides authority for other health professionals providingprovides authority for other health professionals providingservices under the plan.

Capable patients can withdraw consent at any time.

Practitioners who provide treatment based on what theyreasonably and in good faith believe to be a valid consentcannot be held liable under the Act. The same principleapplies to a reasonable and good faith reliance on a refusalto consent.

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StanisSticky NoteThe legislation of consent here are identical to common law, so why do we need it?

The person providing the treatment is the one who decides competency.

The HCCA says that in order for to provide treatment to you, I must be of the opinion that you are capable of consenting, and of the opinion that you consented. It doesn't matter if Uncle Fred's family thinks that he is a dingbat and incapable. The person providing the treatment must be of the opinion, that the patient is capable. If I am of the opinion that you are incapable, then you need the consent of the substitute decision maker.

For the consent to be valid the consent must be informed. This is slightly different from the common law, which states that knowing the nature of the treatment is enough for consent. Under the HCCA, the consent must be informed, which means that all the questions must be answered openly and honestly. There is an affirmative duty to provide information on all things about the treatment.

The rest of this is the same as the common law.

So the HCCA is very similar in consent to the principles of the common law, with one exception. The responsibility to provide information is broader in this legislation than in common law.

StanisSticky NoteSame as common law

in ontario you don't need to tell the patient who the primary caregiver is. In Quebec you have to inform the patient

StanisSticky NoteThis law already protects health care professionals substantially. This continues to provide very broad protection under the law. Under the common law, if you mistakenly believe that you consented, too bad.

Here, if you act under the mistaken belief that you consented, then you're protected if it was reasonable and in good faith.

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(d) Informed Consent: Battery or Negligence?

Failure to obtain a valid consent traditionally gave rise to abattery claim.

H h S C f C d li i d b However, the Supreme Court of Canada limited batteryactions in 1980 to cases in which the patient: did not consent at all; the consent was exceeded; or the consent was obtained fraudulently.

In all other cases, a plaintiff must bring a negligence claimf f ili b i i f dfor failing to obtain an informed consent.

The Canadian courts have not provided a compellingreason to adopt this pro-defendant approach.

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Part 3: Consent Forms

(a) Essential Elements of a Valid Consent Form Unless a statute provides otherwise, a patient may consent

explicitly (orally or in writing) or implicitlyexplicitly (orally or in writing), or implicitly.

Prudent to get written consent in some cases (e.g.significant risks, non-traditional therapy, legally, sexually,or emotionally sensitive issues, and challenging patients).

A signed consent form is evidence of consent, not ironcladproof of consent. A signed consent form is only as good asthe information it contains and the circ mstances in hichthe information it contains and the circumstances in whichit is signed.

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StanisSticky NoteAt one time, the court said that the failure to obtain valid consent for any reason resulted in battery.

Now, battery can only be brought if there was no consent at all, the consent was exceeded, or the consent was obtained fraudulently. Otherwise, a lack of informed consent was only liable for negligence. In negligence, the plaintiff has to prove every action of the tort.

The bottom line is you have to comply with the HCCA, but it doesn't affect civil liability in battery.

HCCA broadens the protection of healthcare providers in certain circumstances. But in civil cases there is no difference in the liability of tort.

StanisSticky NoteThere are some statutes that require consent in writing. under the Public Hospitals Act, in order to have non emergency surgery at a public hospital, you need consent in writing if they are 16 or older.

So agencies have choices, relying on verbal consent, or they can demand consent in writing as a management policy. There are some cases which are smart to get consent in writing as outlined before. A signed consent form is not iron clad, it's only as good as the circumstances and information enclosed within.

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Having a patients signature witnessed will rarely be of anylegal value. Nevertheless, a patients signature may have tobe witnessed if required by statute or management policy.

Ensure patient can read/understand English. A practitioner may rely on a relative to translate, unless

there is some reason to believe that the information will notbe communicated accurately.

A signed consent form is only a means of documentingpatients consent, not a waiver of liability.

Issue for court is whether the patient consented to the Issue for court is whether the patient consented to theproposed treatment understanding the risks, benefits andalternatives, and not whether her or she signed a piece ofpaper.

Reid v. Maloney.37

Part 4: Capacity to Consent to Personal Care As with consent, capacity issues must be framed precisely

who is capable of giving consent for what?

(a) Capacity to Consent under the HCCA(a) Capacity to Consent under the HCCA The HCCA principles of capacity are virtually identical to

the common law principles. A patient is capable if he or she is able to understand the

information related to the specific decision and is able toappreciate the reasonably foreseeable consequences ofconsenting or refusing consent.A ti t it h ti A patients capacity may change over time.

A patient may be capable of making some decisions, butnot others.

If a patient is capable, it is his or her decision that governs. All individuals are presumed to be capable, unless there is

evidence to the contrary. 38

StanisSticky NoteIn order for a witness to be of any benefit, the witness has to be there for the entire explanation. They are useless in the vast majority of circumstances.

StanisSticky NoteIf the technical language can't be understood by the patient, then it's not valid. If the patient doesn't get a chance to read it, then it's not valid.

If there is no reason to believe you can't read english, then you can assume the patient can read

StanisSticky NoteAny factual observation by me is admissible by court and assumed to be true

StanisSticky NoteA woman was seeing a chiropractor. The chiro gave her a general consent to chriproactic service. She eventually sued him for negligence for failing to obtain informed consent.

The chiro failed to inform the patient that he was planning on manipulating her spine on the exact same area that she had had surgery.

A piece of paper signed is not a waiver of liability, it just means you can't be charged with assault.

StanisSticky NoteIn common law, they use the term competence, the HCCA used capacity. They are synonyms.

StanisSticky NoteIdentical to the common law principles.

StanisSticky NoteHas nothing to do with the wisdom of the decision, only with the ability to comprehend information.

StanisSticky NoteCapacity is just a snapshot in time in respect to particular treatment

StanisSticky Notemay be capable of choosing to go to the hospital, but not about choosing a risky procedure

StanisSticky Notea 12 year old must be presumed to be capable, unless there is evidence otherwise.

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These capacity principles apply whether the patient is anadult, minor, developmentally disabled, intoxicated, high,involuntarily detained in a mental hospital, vulnerable,frail, rash, or immature.

The current test of capacity is set at a very low threshold.The test does not relate to the patients ability to make areasoned, rational, wise, or prudent decision.

No concept of diminished capacity. The patient is eithercapable or not.

R C ( d lt f l f di l t t t) Re C. (adult: refusal of medical treatment).

Neto v. Klukach.

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(b) A Patients Rights under the HCCA on Being Found Incapable

Patient must be informed of the consequences of beingfound incapable.p

In most circumstances, a patient may appeal a finding ofincapacity to the CCB, and during the appeal no treatmentcan be provided except in an emergency.

A patient may request the CCB appoint a named person toserve as his or her representative. A person may apply toh CCB b i d i ithe CCB to be appointed a patients representative.

CCB decisions may be challenged to the court, and untilthe case is resolved no treatment can be provided, except inan emergency.

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StanisSticky Noteto maximize your ability to control your own body and make treatment decisions

StanisSticky NoteProf thinks we went too far in that certain groups of people are capable but vulnerable. Jehovah's witnesses who want to die for your parent's religious beliefs, you're allowed to.

A girl who overdosed on tylenol and who will die from liver failure is capable of choosing death. But she is vulnerable.

StanisSticky NoteC was a schizophrenic who developed gangrene in his foot. His doctor said that unless the foot was amputated, his survival would be 15% . C. got a court order prohibiting the hospital to amputate without his express consent.

The court wanted to know whether despite his mental illness, did he retain enough to know the risks about the amputation treatment. The court decided to grant the order.

The fact that he is mentally ill and involuntarily detained, comes second after capacity to consent.

StanisSticky NoteA woman with bipolar and had been taking lithium. She found the effects to be troubling. She was admitted to hospital and was willing to stay in the hospital but refused consent to the lithium. Her physician found her to be incapable of refusing consent to the treatment. He reached it on two grounds, one being that she refused to acknowledge that she had mental illness. She also had some delusional beliefs about lithium, and so he found her not capable of foreseeing circumstances.

She appealed, but the board upheld the doctor's decision. She was unable to appreciate the reasonably foreseeable circumstance of refusing consent. So according to the board she failed the second half of the test.

She appealed the decision to the court. The court said that it was clear that she is able to understand. The real issue is if she can appreciate the reasonable foreseeable consequence to her life. They took 3 steps:

1. must be able to recognize that they function differently than other people. Neto acknowledged that she was different and Li stabilized her symptoms

2. they must be able to assess how the proposed treatment will affect her life. Neto had previously taken Li, and did not like the side effects on her, and she was able to assess what impact the drug would have on her.

3. the decision that she makes cannot be based substantially on delusional beliefs. While Ms. Neto had some delusional beliefs, these delusions were not the basis for her making the decisions. The reason she didn't want the Li, is because she didn't want the adverse side effects. She simply judged the cons outweighed the benefits.

The court granted her appeal.

StanisSticky NoteRecall the Toews Act. If the nurse was in Ontario, she would have been protected by the HCCA. She wasn't because the case was in BC.

StanisSticky NoteAs required by your profession, you have to tell your patient what being found incapable means.

Basically "I'm sory, I dont think you can make these decisions, so I'm going to have to get a substitute decision maker

StanisSticky NoteThe patient can challen ge the finding. The only exception is if there is a court appointed guardian of the person in which case they can't appeal.

Unless it is a life or limb decision, then no action may be taken until the appeal is resolved. The finding of incapacity can be confirmed or rejected.

StanisSticky NoteThe court doesn't have to appoint the person I chose, but most likely will.

A family member can apply to be the decision maker, but the court will reject them if I say no.

Starson: He was put into a psychiatric ward and put onto medication. He challenged the decision of the consent board, who upheld the decision that Starson was incapable. He was unable to foresee the reasonable circumstance because he thought he was the Son of God. He challenged this decision to the trial court and eventually to the supreme court of Canada, which eventually took 5 years. He became delusional, refused water and food, lost 70 pounds, and by 2005 looked like he was about to die. Only at this time did the psychiatrist acknowledge him as not capable and it was upheld.

This man was untreated on a psychiatric bed for 7 years. He couldn't be treated and couldn't be released (because he kept on threatening to kill people). Injecting rights into medical care is not cheap. In an effort to protect his autonomy rights, we were willing to extinguish his liberty.

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(c) Prior Expressed Wishes (Advance Directives/Living Wills)

Capable individuals who are 16 or older may express wishesregarding future treatment personal assistance services orregarding future treatment, personal assistance services oradmission to a facility. If the individual becomes incapable,these wishes are binding on all subsequent SDMs.

Wishes may be communicated orally or in writing. No setform of expression is required. This lack of safeguards onprior expressed wishes is problematic.

R h i d t t t t th t i di id l k hil Rash or imprudent statements that an individual makes whilecapable about accepting or rejecting treatment becomebinding expressed wishes once he or she becomes incapable,regardless of the adverse impact of that decision.

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Given the presumption of capacity, no evidence or proof isrequired that the person was in fact capable when he or sheexpressed the wish.

A SDMs unsubstantiated claim that the patient hadexpressed a wish is sufficient There is no requirement forexpressed a wish is sufficient. There is no requirement forany independent, third-party or documented proof.

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StanisSticky NoteWhen you become incapable, any alternate decision maker is bound by your expres wish if you were 16 and able when you made that wish. Once you make that wish and become incapable, then t is binding until you are capable. Basically be careful what you wish for.

1st problem: once you make a wish and are capable, it is binding forever once you become incapable. So if you make a rash statement you will be bound by it.

2nd problem: there doesn't have to be any written, 3rd party, or independent evidence that you ever made the wish. There was a case of Gallagher, where the brother claims that the patient claimed he never wanted antipsychotics

3rd problem:

StanisSticky NoteIn other provinces it must be written. In Ontario there's a lot more leeway. Just an offhand statement is binding unless there's evidence to the contrary.

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(d) Capacity to Manage Property Under the SubstituteDecisions Act, 1992

A patient is capable of making property decisions if he orshe is able to:

d d h i f i l d h ifi fi i l understand the information related to the specific financialdecision in issue; and

appreciate the reasonably foreseeable consequences ofmaking or refusing to make that decision.

The test of capacity focuses on the ability to understandinformation and not the wisdom or prudence of the financiald i idecision.

Park v. Park.

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(e) Minors and Capacity

This is no set age of consent to treatment at common law orunder the HCCA. Rather, like other patients, minors arepresumed to be capable unless there is evidence to thecontrary.

The general test of capacity applies to minors and if they arefound to be capable it is their decision alone that governs.

Some courts have reframed the test of capacity for minors interms of whether the individual is a mature minor.

C. v. Wren.

Re Dueck.

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StanisSticky NoteIs this person able to understand the information at this point about the financial decision to be made.

Are they able to appreciate the reasonable foreseeable financial circumstance.

It's the same two part test, but in regards to financial matters.

If people think of your decisions are unwise and imprudent doesn't matter.

StanisSticky NoteMrs. Park tried to sell her house. The Husband at that point went to court and applied to the court to be named her court appointed guardian of property claiming that she was incapable of making these decisions.

She was not happy with her husband's application that she was insane. She denied she was incapable and began divorce. The court says that incapacity should only be made when it is unmistakably clear. And given that he other children testified that she was capable, a capacity assessor assessed her capable, and the paralegal said she was capable, rejected the husband's application.

StanisSticky NoteTest of capacity applies to everyone. It does not contain an age limit. So if you were 14 and want birth control pills, the legal issue is simple: do you understand the risks and benefits, and can you understand the foreseeable circumstances.

The age limit is only for a binding advance directive, substitute decision makers, or create a power of attorney you have to be 16+.

In some jurisdictions and older cases involving kids, instead of applying the common law test, the courts reframed the issue as the mature minor rule: was the person a mature minor. Looks at indicia of maturity.

StanisSticky NoteSad case.

TB was a 13 year old boy. Diagnosed with a cancer in 1998. His oncologist recommended chemo and amputation. There was a 65% chance of making a full recovery if he received the chemo and amputation.

TB;s parents refused consent. The court acknowledged that TB was a child that required protection. Initially, the minister of social services has the authority to make decisions on the child's behalf. After a couple rounds of chemo TB told his docs he didn't want any more treatment. The Minister then went to the courts to renew his authority as a decision maker for TB.

So the question is whether TB is capable of making his own decisions. They asked whether TB was a mature minor. TB had been told by his father who is dominating, that there was a treatment in Mexico that had an 85% cure rate that didn't involve surgery or chemotherapy. TBs father convinced him to refuse therapy and amputation, because there was "cure in Mexico and California..

The court said that even though TB was of normal intelligence, he was a little less mature and extremely dependent on his father. And his father's influence prevented him from understanding the consequences of the treatment, and decided he was not a mature minor.

In the meantime the father took TB to Mexico, and the cancer spread, and he died.

StanisSticky Note16 yo who became pregnant. moved out and went to live with her boyfriend and wanted an abortion. At this time you needed the abortion committee from the hospital to get an abortion.

The parents challenged claiming that she was not capable of giving valid consent. The board sympathized with both the daughter and the parents. But he lgal issue was clear. The court concluded that she was capable and dismissed the parent's application.

It wouldn't have made a difference if she was 14, there is not age limit.

The legal answer can be clear and simple, tha doesn't stop parents from calling up and screaming. There are legal issues and diplomatic issues that will occur.

StanisSticky NoteThere was a similar case in Ontario.

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(f) Statutory Ages of Consent There are relatively few statutory age of consent provisions. The Child and Family Services Act (CFSA) has a three-tiered

age of consent. Those 16 and older can consent to any services. Those under 16 require parental consent to residential care

and the administration of psychotropic drugs. Children 12 and older may consent to counselling without

parental consent, but if they are under 16, they must beinformed of the desirability of involving their parents.

The CFSA does not address whether a competent child under12 can consent to counselling on his or her own behalf (i.e.without parental consent).

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Education Act. Parental consent in writing is required for IQ or

personality testing of a student who is under 18. The Education Act does not prevent schools fromp

providing any other type of treatment, assessment,referral, or counselling to competent students regardlessof age.

Both student and parent, if student is under 18, have astatutory right to access the students Ontario StudentRecord.

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StanisSticky NoteUnder the trillium gift of life network act, you have to be 16

StanisSticky NoteOnly applies to services under this act

StanisSticky NoteIf it's in the child's best interest

StanisSticky NoteDoesn't apply to other decisions.

StanisHighlight

StanisSticky NoteA large number of schoolboards will not provide counselling to students without parental consent. The kinds of kids with the most serious problems are the least likely to get parental support.

So now some schools will block counselling to the people who need it the most.

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Chapter II: Recap

Common law principles of consent and exceptions.

Health Care Consent Act, 1996. Scope and structure Scope and structure. Principles of consent. Informed consent: battery or negligence?

Consent forms.

Capacity to consent to personal care. A patients rights on being found incapable A patient s rights on being found incapable.

Prior expressed wishes (advance directives/living wills).

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Capacity to manage property under Substitute Decisions Act,1992.

Minors and capacity.p y

Statutory ages of consent.

Child and Family Services Act. Education Act.

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