Q: I had my patient sign a consent form when they completed their intake paperwork, so I’m covered, right?
A: Wrong! A consent signed before the patient has received information about the assessment, their physiotherapy diagnosis, the proposed treatment, and the risks/benefits and consequences of receiving or not receiving treatment is clearly not informed consent.2 It is not worth the paper it is written on.
Q: Do I need to get written consent?
A: Documentation of verbal consent is considered valid and acceptable. Written consent provides concrete evidence that the patient signed a consent form but does not necessarily indicate that the consent was informed.2 The best-case scenario is to obtain written consent, after having the informed consent discussion with the patient, and having documented the nature and content of that discussion.
When the risks of an intervention are more significant or more common, it is recommended that members follow the latter approach and obtain written consent following the informed consent discussion.2
Q: What about implied consent?
A: Historically, it was thought that if a patient made an appointment and attended a treatment session, their consent was implied by their actions.2 However, the simple act of attending a physiotherapy appointment does not ensure that the physiotherapist has provided the patient with the necessary information to make decisions about the patient’s care and that informed consent has been obtained. Attendance at a physiotherapy appointment cannot be considered “informed consent” in and of itself.
Relying on implied consent can lead to challenging situations in which the extent of consent implied becomes a matter of disagreement after the fact. It is, therefore, preferable to obtain express consent.2
However, a patient or their agent, may provide consent for a “plan of care” expected to continue over a series of treatment visits. In this case, the patient’s attendance and participation with the agreed plan of care may be considered implied consent. Provided there is no significant change in the nature, expected benefits or risks of treatment, a physiotherapist may presume that consent to treatment continues. The physiotherapist is expected to provide updates and reporting to the patient (or his/her agent) throughout the course of treatment to support this ongoing consent.4
However, a new informed consent must be obtained whenever there is a significant change in the patient’s capacity, condition, the treatment plan, expected outcomes or risks.4
Bear in mind that a patient may at any time withdraw consent, whether it be for the plan of care entirely or for a specific intervention. Providers are advised to informally reaffirm consent to treatment at the start of each visit.
Q: What does it mean to “informally reaffirm” consent at the start of each treatment visit?
A: Every time a patient comes for treatment, the physiotherapist should review the treatment plan for that visit and confirm that he/she has the patient’s agreement to proceed. That does not mean that the physiotherapist should have a detailed consent discussion or obtain signed consent each time the patient visits the clinic. However, confirming the patient’s ongoing agreement with the plan, and creating a space for the patient to decline or to ask questions about the treatment helps to avoid misunderstandings and disagreements.
Q: How do I decide if a minor has sufficient capacity to understand the nature and purpose of the proposed treatment and consequences of receiving/refusing treatment?
A: There is no clear test to determine if a minor is in fact “mature.” However, the law has recognized a series of factors to be considered when making this decision. The physiotherapist should consider the patient’s age, maturity and the nature and extent of the patient’s dependence on his/her parents/guardians (which relates to the ability of the minor to make an independent decision without the coercion and influence of the parent or guardian). The physiotherapist should also consider the seriousness of the condition, the complexity of the treatment, and the risks related to the treatment proposed.
This is not an exhaustive list. Overall, a physiotherapist should engage in a holistic analysis of the capacity of the minor before them.
Physiotherapists should document and be able to explain how they determined that the minor was “mature” and able to make their own health-care decisions. They should also reflect on whether a group of their peers would view the decision as reasonable.
If the physiotherapist has any doubts, he/she should consider having a second health-care provider offer an opinion.13 Physiotherapists should also follow any employer-directed processes related to forming this determination.
Physiotherapists must also be aware that if a patient is deemed a mature minor his/her guardian has “no authority to override or veto the mature minor’s decisions.”12
Q: I have a patient who is a minor and does not qualify as a mature minor. They are from a different city and are in town attending a month-long sports camp. They have come to my clinic accompanied by their coach. Their guardian is not in town. What do I do?
A: In an emergency, health-care providers can act in the patient’s best interest to provide care necessary to prevent prolonged suffering or address imminent threats to life, limb or health.2 It is also possible for a guardian to appoint a person to act on behalf of the guardian in an emergency situation.14 However, physiotherapy would not typically be considered emergency care.
The best-case scenario would be to contact the patient’s legal guardian by phone and obtain verbal consent. In doing so, the physiotherapist should have the person at the other end of the line verbally confirm the relationship to the patient and their authority to provide consent on the patient’s behalf.
Q: I have a patient who is a minor and does not qualify as a mature minor. The patient’s parents are divorced and both are remarried. Who can make health-care decisions for the patient?
A: Legal guardians are required to act in the best interest of the child at all times. A legal guardian of a child must provide consent for the child.
Key points to be aware of:
- According to the Family Law Act, both birth parents have equal responsibilities and powers as guardians.
- Step-parents are not guardians of the child, unless they have legally adopted the child.
- A live-in partner of the child’s legal guardian is not a guardian of the child, unless they have legally adopted the child or have a court order granting guardianship.
It is reasonable to assume that a parent of a minor child is the lawful guardian of the child and can consent to intervention. However, if the physiotherapist does not know that the adult accompanying the child is the parent or legal guardian, the physiotherapist should confirm that is the case and document this in the patient file.
Further, if a physiotherapist becomes aware of circumstances that would suggest that an adult accompanying the child does not, or may not have guardianship of the child, the physiotherapist is required to ask further questions before providing non-emergency care.12,14
You may want to ask the adult the following:
- Are you this child’s legal guardian?
- Are you aware of anything that prevents you from having the authority to provide consent for this child?
- Are there any other guardians who need to be consulted regarding decisions for this child?4
Q: In the case where the birth parents of a child requiring physiotherapy are divorced, do I need to have consent from both legal guardians?
A: If one parent has sole custody of the child (i.e., the custodial parent), they become the sole guardian of the child and are, therefore, the only parent responsible for providing consent for intervention. “If a custodial parent consents to treatment for a child which appears to be in the best interests of the child, the non-custodial parent cannot stop the treatment by advising that they do not consent to the treatment.” While the non-custodial parent retains the right to make inquiries and to be given information about the health, education and welfare of the child, this does not mean that the custodial parent’s decisions are subject to the consultation and approval of the non-custodial parent.
If the parents share custody, they also share guardianship, therefore, both have the right to consent to treatment. One parent does not have the “authority to prevent or override the other parent’s consent for treatment that is in the best interests of the child.”12,14
Cases of shared custody can create challenging situations for the treating physiotherapist if the guardians do not agree about treatment decisions. In such a situation, the physiotherapist will need to work with the guardians to build consensus about a plan of care and if consensus cannot be found, will need to consider the need to discontinue treatment.
Physiotherapy Alberta’s Practice Advisor can provide support to work through this type of scenario.
Not sure who has the right to give consent on behalf of the child? Ask about and document the terms of the custody order as described by the parent who brought the child for treatment. You may also request a copy of the court order declaring parental rights upon divorce, if desired.12,14
Q: I am seeing an elderly patient who appears to have limited mental capacity. How do I get consent?
A: If you have concerns about an adult patient’s capacity to provide informed consent, the question becomes “who has the authority to make decisions on the patient’s behalf?” If the patient has a legal guardian, an agent identified in an enacted Personal Directive, or a Supported Decision-Making arrangement in place, the appropriate individual should be approached for consent.4
If no such arrangement is in place, the physiotherapist may proceed with treatment that is in the patient’s best interests with the patient’s family’s approval and the patient’s assent.2
This also has the potential to create a challenging situation, particularly if different family members cannot agree about the treatment plan. In cases where the proposed treatment is risky or there is disagreement among family members, Physiotherapy Alberta recommends that members take a cautious approach to any treatment provided, consider the need to discontinue treatment until questions of capacity and guardianship are addressed, or seek legal advice before proceeding if treatment cannot safely be discontinued.2
Physiotherapy Alberta’s Practice Advisor is available to help members who are facing this type of situation.
It would also be appropriate to discuss the issue with other health professionals within the circle of care, and to advocate for a formal capacity assessment or the appointment of an agent for the patient as appropriate.
Q: I am seeing a patient who has limited English proficiency. Do I need a trained interpreter?
A: Interpreters, including sign language interpreters, should be used if any doubt exists about a patient’s capacity to understand the implications and nuances of the English language and provide informed consent.
It is a best practice to use professional interpreters when obtaining consent from individuals with limited English proficiency. Using a family member, friend, or other health-care provider creates risk that the information will not be conveyed accurately and that consent will not be valid.
When employing an interpreter, the health professional should clearly indicate that an interpreter was used to obtain consent. It is also a best practice to have the interpreter sign a declaration stating “I, (interpreter name), interpreted the information faithfully and accurately.” It is not the interpreter’s role to determine or even indicate whether the patient understands the information provided. Their role is to faithfully and accurately interpret the communication exchanged.15
Depending on the population served by the practice, it may also be reasonable to have forms and patient education materials translated into different languages, though the success of that strategy relies on the patient’s ability to read their first language.
Q: My patient told me they use medical marijuana. Can I accept consent from them?
A: Marijuana is one of several substances that may impact a patient’s capacity to provide consent. The issue is not what substance is in use, but rather whether the substance impairs the patient’s capacity to provide consent. Physiotherapists should employ the same policies and processes as when faced with a patient who is impaired from any other substance.16
Some treatments come with more risk than others. If a physiotherapist has concerns that the patient does not appreciate the nature and consequences of the consent decision, regardless of the reason, the physiotherapists should neither seek nor accept consent for that treatment. This will impact the treatment plan and the approach the physiotherapist will take.
Again, the physiotherapist should ask himself/herself, “capacity to consent to what?” Depending on the specific situation, it is possible that the patient may have sufficient capacity to consent to lower-risk treatment options. Physiotherapist will need to use their own judgment when making this determination.
Q: My patient is making a decision that is dangerous and puts their own safety at risk. What can I do?
A: If the patient has capacity, they have the right to make their own decisions and to have those decisions respected by their health-care providers.3 Physiotherapists should explain their recommendations and concerns to the patient,2 seek to understand the patient’s values and rationale for their decision and seek a solution that mitigates the situation.
However, if the patient ultimately decides to follow a different course of action from that which their health-care providers recommend, the physiotherapist must abide by the patient’s decision.3 The physiotherapist’s duty of care to the patient requires that the physiotherapist take steps to help the patient be as safe as possible within their chosen course of action.