What does custody have to do with consent?
An ever-evolving area of professional misconduct issues relate to consent for health care services in the grey and difficult area of acrimonious family law proceedings. Complaints and reports to health professions’ regulators often stem from parents who are at odds about the care their child(ren) are receiving and who have the right to consent or decline services.
According to the Health Care Consent Act, a parent has the right to consent or refuse health care services on behalf of a child. This does not include a parent who only has a right of access. However, how much digging is a healthcare professional required to do before proceeding with the treatment of a child?
The Health Care Consent Act provides protection from liability to a health care professional who administers or refuses treatment to a person (in this case child) with consent that the practitioner believes, on reasonable grounds and in good faith, is sufficient for the purposes of providing consent. A healthcare professional is entitled to rely on the accuracy of a parent’s assertion that they have the power to consent or refuse services on behalf of a child.
However, and this is a big however, the ‘liability’ referred to in the Health Care Consent Act refers to civil liability (lawsuits) and does not necessarily refer to liability with respect to the health care professional’s regulatory body. As a result, while citing the Health Care Consent Act might be helpful, it is not the end of the story.
Health professions’ regulators are increasingly expecting their registrants who own and operate health care clinics to have practices and policies in place to ensure that the parent(s) who are apparently consenting or refusing treatment on their child(ren)’s behalf have the legal authority to do so.
As a result, it is now best practice to ensure that you and/or your Clinic have these practices and policies in place, particularly in the unfortunate event that a complaint or report is made to your regulator.
What can I do as a healthcare professional to ensure that I am protected?
There are some straightforward steps that you can take as a health care professional and/or as a medical clinic to ensure that you are asking the right questions to confirm consent and keeping the right records to demonstrate that you have done so.
This can include revisiting your consent forms to specifically request information on who can consent and refuse treatment. This can include adding a checkbox to your intake forms confirming that the parent has the legal authority to consent/refuse service. In cases of uncertainty, this may prompt the need to request a custody agreement to confirm who may consent to or refuse services on behalf of a child.
Some regulators have policies and guidelines setting out their expectations when it comes to this tricky area. It is important that you pay close attention to those rules as they evolve
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It is clear that this is an area of professional regulation that will continually develop. If you are the subject of a complaint or investigation, you should contact a lawyer experienced in professional regulation.
At Damien Frost & Associates LLP, we will advise you of your rights to respond to complaints and investigations, explain your obligations and duties to cooperate, and represent you before your complaints committee or discipline committee. Contact our office to schedule a free 30-minute consultation with one of our lawyers to get immediate assistance.
