Know your Rights
The Health Care Consent Act is an important piece of legislation that ensures your rights as a medical patient are protected.
When the patient is “capable”, it means that they are able to understand the information given to them about the treatment offered, and they can appreciate the possible consequences of the decision (or no decision) that they make.
This law states that no treatment shall be given to a capable person without their consent. Consent means that the individual understands what is being offered to them and agrees with the treatment.
- The consent must relate to the treatment
- The consent must be informed. A patient must be given more information if they ask
- The consent must be given voluntarily
- The consent must not be obtained through misrepresentation or fraud
Consent may be withdrawn at any time. This means you can change your mind at any point for any reason. You cannot be threatened with Children’s Aid Society or a “dead baby”, or any other form of harassment for not agreeing with a suggested treatment.
If the individual is not capable of giving consent, then a recognised substitute decision-maker will be asked for consent. This may be the individual’s partner, family member, or the parent or guardian if the patient is a minor.
In order for the consent to be considered informed, it must first meet these criteria:
- The person received the information that a reasonable person in the same circumstances would require in order to make a decision about the treatment
- The person received responses to their requests for additional information
- The information included:
- The nature of the treatment
- The expected benefits of the treatment
- The material side effects of the treatment
- The likely consequences of not having the treatment
Further, the Canadian Patient Bill of Rights states that persons have:
- The right to be fully informed about their medical condition and the available treatment options
- The right to be involved in treatment decisions
- The right to information on the qualifications & experience of their health care providers
- The right to receive considerate, compassionate, and respectful services
- The right to confidential communication with health professionals
- The right to have access to copies of personal health records and to have them corrected, if necessary
Registering a complaint
OBTAINING YOUR MEDICAL RECORDS
Your rights include access to your medical records, although there may be a cost associated with this. Contact your medical care provider and the clinic or hospital at which you received services for a copy of your records.
YOUR LOCAL HOSPITAL
Each hospital has a Patient Relations department that serves to interact with patients and to advocate for them in receiving health care services. This is a hospital service, so it’s important to consider that they will be tasked with the dual role of helping to ensure complaints are managed in a way that prevents the situation from escalating to litigation or negative community publicity.
This service may be a good option if any member of the hospital staff behaved inappropriately, such as rude comments or incidences of lateral abuse that impacted your care. You may request that a department head or the hospital administrator is advised of the situation and ask for a meeting with a member of the hospital team. You may also insist on having an advocate with you during any potential meeting. You may also record any meetings with hospital staff, without gaining their permission, so long as you are present in the meeting and are recording your interactions with them.
Filing a complaint with the hospital may be a necessary first step in escalating your issue, as some of the following agencies will request that the matter is first tackled at the local level before they become involved.
The College of Physicians and Surgeons of Ontario is the regulatory agency that licenses physicians and enforces appropriate scope of practice, Code of Ethics, Physician Behaviour in the Professional Environment, and Medical Professionalism.
All practicing physicians must agree to the Code of Ethics that includes that the physician will:
- Refuse to participate in or support practices that violate basic Human Rights
- Respect the right of a competent patient to accept or reject any medical care recommended
- Respect the patient’s reasonable request for a second opinion from a physician of the patient’s choice
- Be considerate of the patient’s family and significant others and cooperate with them in the patient’s interest
- Collaborate with other physicians and health professionals in the care of patients and the functioning and improvement of health services. Treat their colleagues with dignity and as persons worthy of respect
Complaints regarding physician behaviour may be directed to the College. https://www.cpso.on.ca/Public-Information-Services/Make-a-Complaint
The College of Nurses of Ontario is the regulatory agency that licenses registered nurses and handles any complaints regarding the behaviour or services provided or not provided by a registered nurse. Nurses practice under a Code of Conduct that is comprised of six principles.
- Nurses respect the dignity of patients and treat them as individuals
- Nurses work together to promote patient well-being
- Nurses maintain patient’s trust by providing safe and competent care
- Nurses work respectfully with colleagues to best meet patients’ needs
- Nurses act with integrity to maintain patients’ trust
- Nurses maintain public confidence in the nursing profession
Complaints regarding a nurse’s conduct can be addressed to the College. https://www.cno.org/en/protect-public/making-a-complaint-public/
The College of Midwives of Ontario is the regulatory agency that licenses registered midwives and handles any complaints regarding professional misconduct by a registered midwife. Midwives practice under the Professional Standards for Midwives.
Examples of professional misconduct include:
- Not obtaining consent in accordance with the Health Care Consent Act
- Delegating a controlled act to someone who is not authorised to perform that act
- Abusing a client verbally, physically, psychologically or emotionally, or taking unfair advantage of a client as a result of the member’s position in the midwife- client relationship
- Failing without reasonable cause to provide services to a client during labour and childbirth in the setting chosen by the client
- Providing services or treatment to a client where the member knew or ought to have known that the services or treatment would be ineffective, unnecessary or deleterious to the client or inappropriate to meet the needs of the client
- Breaching an agreement with a client relating to professional services for the client
When clients choose care outside of midwifery standards, midwives have a duty to work with the client to try to achieve a collaborative solution. In a non-emergent situation, the midwife may choose to continue to work with the client and document their discussions, or the midwife may choose to terminate care. However, the midwife cannot abandon care during labour should the client choose to decline standard midwifery services.
Complaints regarding a midwife’s conduct can be addressed to the College. http://www.cmo.on.ca/public/inquiries-reports-and-complaints/
ONTARIO PATIENT OMBUDSMAN
The Patient Ombudsman investigates patient and caregiver complaints regarding patient and health care experiences in hospitals. This is considered an “office of last resort” when all other avenues to resolve the issue with the health sector organisation has failed.
The complaint must be about an (in)action of a health sector organisation that involves the health care experience of a current or former patient. The Ombudsman works to resolve the issue so that patient care for all Ontarians can be improved. If the process of resolution is unsuccessful, the Ombudsman can escalate to an investigation, including summons and warrants for information.
CANADIAN HUMAN RIGHTS TRIBUNAL
The Tribunal is an agency that legally decides whether a person or an organisation has engaged in discriminatory practices according to the Canadian Human Rights Act. All Canadians have the right to equality, equal opportunity, fair treatment, and an environment free of discrimination. This includes freedom from discrimination based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability, or conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered. Where the ground of discrimination is pregnancy or childbirth, then the discrimination is considered to be on the grounds of sex.
It is a human rights violation to retaliate or threaten retaliation against an individual who files a complaint. Patients who experience retaliatory services or threats to their security or their family’s security (threats of having their children apprehended by Children’s Aid Society) due to filing a complaint may consider contacting the Human Rights Tribunal.
CHILDREN’S AID SOCIETY
At times, a pregnant parent will decline the recommended treatment offered by their care provider, on-call physician, or emergency department physician. Likewise they may have presented for emergency medical care without a history of engagement with usual prenatal services. In the absence of any indication that the pregnant individual is under duress to avoid wanted medical services, it’s not uncommon for an over-zealous care provider to call Children’s Aid Society to investigate the decision-making process of the parent or to enforce their recommendations for the benefit of the fetus. In Canada, the fetus has no legal standing and is not afforded the rights and protections of citizenship. Any calls to CAS under these circumstances are harassment under the Criminal Code of Canada if the family fears for their safety or the safety of their children in the event that CAS also threatens to apprehend their children to force compliance with the medical provider. This may require the services of an experienced lawyer.
Seeking medical services for an infant that was not already part of the usual suite of medical services can also result in a physician, nurse, or medical facility calling CAS to investigate the family for non-conventional choices. While families have the legal right to security of persons and informed medical decision-making, this is sometimes not translated into collaborative engagements with health care providers. A substitute decision-maker, in this case, the parent of the infant, may have their infant apprehended by CAS under the Child, Youth and Family Services Act if the care provider believes that the infant requires a treatment to cure, prevent, or alleviate physical harm or suffering and the child’s parent is not consenting to the treatment. When there is evidence of CAS violating the parent’s legal rights to informed medical decision-making and has facilitated in criminal harassment in the absence of any medical risk to the infant, a complaint may be registered with Regional Children’s Aid Societies and followed up with a complaint to the Child & Family Services Review Board in Tribunals Ontario Social Justice Division.
Further, many CAS workers are also registered social workers regulated by the College of Social Workers of Ontario. They must also abide by their Code of Ethics and Standards of Practice. Complaints may be addressed to the College. http://www.ocswssw.org/complaints-discipline/cd_complaints/
Originally published by Billie Harrigan Perinatal & Consulting March 2019
© Billie Harrigan 2019