Considerations for Obtaining Consent when Custody is in Question

A physiotherapist has been providing ongoing care for a young child. The PT has determined that the young child is not capable of providing valid consent for treatment, and the decision must be made by a substitute decision maker. The child’s parents are divorced and have told the PT of the joint custody agreement, that stipulates either can make care decisions for the child. The PT had noted this relationship in the child’s patient record at the initial assessment. 

The father books a subsequent appointment at the clinic for their child and attends on the day, discussing the treatment, and providing consent to proceed. The PT again noted this consent in the patient record. After the appointment, the mother contacts the PT quite upset that she had not been consulted or the child had been examined without her consent. 

Legislation

• If a patient is not capable of making a consent decision with respect to their treatment, the decision must be made by a substitute decision maker. The priority of substitute decision makers are outlined under the Act (s20). 
• Further under the HCCA, if “a treatment is administered to a person with a consent that a health practitioner believes, on reasonable grounds and in good faith, to be sufficient for the purpose of this Act, the health practitioner is not liable for administering the treatment without consent”(s29(1)).

Did the PT meet their consent obligations?

1. Based on the information provided in this case, the PT appears to have acted reasonably and in good faith by proceeding with treatment with the father’s consent.
2. The PT had determined the child was incapable of making a consent decision, and involved the substitute decision maker.
3. The parents had outlined, based on their custody agreement, that either could make care decisions for the child.
4. The PT had noted this in the patient record. At this specific appointment, the PT had discussed treatment with the father and obtained and documented his consent being proceeding with care. 

Where a child is incapable of consenting to treatment, the PT should inquire into whether the accompanying person has the authority to consent on their behalf. If in the PT’s judgment there is no reason to doubt the person’s assertion of custody and/or the right to consent, the PT may rely upon that consent in providing treatment. The PT’s inquiry and the resulting response should be documented in all cases.

Considerations

If a PT is providing care to children, they should consider custody issues when a child attends with a parent, guardian, or alone. 

1. PTs should ask the person accompanying the child (when the child is not capable to consent for their own care) if they have the authority to provide consent or if another person needs to be consulted. 
2. If the accompanying person reports they have the authority to provide consent, the PT can rely on the consent of that person unless they have reasonable grounds to be concerned.
3. During the patient intake PTs should document their inquiry and the resulting response related to any custody issues, the right/ability  to provide consent in the patients’ chart.

As per Ontario family law, generally where parents are separated or divorced and custody arrangements have not been clarified (unlike the case above where the specific agreement was confirmed), a PT should be aware that:

• Parents with sole custody have full parental rights and can give consent for care. 
• Parents with access arrangements have the right to receive health information BUT do not have the right to give or withhold consent.
• Physiotherapists should generally have the consent of both parents with joint custody. 

As health lawyer Kate Dewhirst writes in a blog “Feuding Parents and Privacy Requests: what to do when joint custodial parents disagree“:

“While there is no obligation on a custodian to canvass with both parents, where there is information to suggest that one parent disagrees (or would disagree if asked), the custodian can no longer rely on the authority of the other parent to disclose information and must get both parents to agree before privacy decisions can be made.”

It is important to note that these basic rules can be amended by an agreement or court order. It is prudent for PTs to take proactive steps to confirm the legal authority of that parent to make decisions on the care and treatment of the child.

Further information and resources for PTs on the topic of consent can be found on the College website.