Standard 3.2: Consent

Normally, psychotherapy is not a one-time intervention, but continues over a period of time or may be intermittent. Similarly, informed consent is not simply obtained at one point in time and never thought of again. Ongoing consent is implied by the continuing attendance of a client at therapy sessions. However, any change in the therapeutic approach or the techniques employed shall be documented in the client record, along with a note about the client’s express or implied consent.

Some therapy techniques, e.g., physical touch used as part of somatic therapies, require express consent in each instance. A registrant must not assume they have the client’s implied consent to touch them, even if they used similar techniques with that client in the past.

A client may withdraw consent at any time. Withdrawal of consent shall be documented in the client record and should include the reason for the change.

Healthcare professionals often use standardized forms to obtain written consent from clients. A signature on a form does not necessarily constitute informed consent. The elements of informed consent (see above) are usually obtained through discussion between the registrant and the client. Only following discussion can the client provide informed consent. The signature of the client is only partial evidence that they have provided informed consent.

There is no minimum age for consent. Clients under 18 years of age can, if they are capable of understanding and appreciating the consequences of their decision, give consent. For minors, consent must be considered on a case-by-case basis in light of the young person’s capacity and applicable laws. The Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A (ontario.ca) contains detailed information on Ontario’s healthcare consent laws.

Informed consent requires that a client be capable of providing such consent. This means that the client must be cognitively capable, i.e., able to understand the information provided, and to appreciate the consequences of their decision.

All healthcare professionals, including RPs, are responsible for identifying when a client is incapable of providing consent to treatment.[1] Generally, registrants may assume that a client is capable. Registrants are not required to scrutinize each client’s capacity to provide consent unless there are reasonable grounds to believe the client may not be capable. The therapist assesses the capability of the client by discussing the proposed therapy or therapeutic process with the client. The purpose is to see whether they understand the information, and appreciate any possible risks or consequences, including the implications of not proceeding with therapy.

A client may be incapable with respect to certain issues and capable with respect to others (e.g., a client may be capable of discussing personal matters but incapable of managing their finances). When a client is found to be incapable, the therapist must identify a substitute decision-maker who can provide informed consent on behalf of the client. The substitute must be at least 16 years of age (unless a parent is acting as substitute decision-maker for their child) and must be a capable person who is willing and able to act. The substitute decision-maker is usually a spouse, parent, friend, or other relative. Potential substitutes are ranked in law, (see below for the ranking of substitutes). Normally, the person ranked highest is asked to serve as substitute decision-maker, if able and willing.

[1] RPs are not authorized to become “evaluators” under the Health Care Consent Act for the purpose of formally assessing whether an individual is capable of consenting to admission to a care facility or with respect to a personal assistance service. Similarly, RPs are not authorized to become “assessors” under the Substitute Decisions Act for the purpose of formally assessing whether an individual is capable of managing property. However, RPs, like all other health professionals, must be able to identify when a client is incapable of providing consent to treatment.

Per the Health Care Consent Act (1996), the ranking of substitute decision-makers are as follows (from highest-ranked to lowest-ranked):

• A court appointed guardian of the person.
• A person who has been appointed attorney for personal care. The client would have signed a document appointing the substitute to act on the client’s behalf in healthcare matters if the client ever became incapable.
• A person appointed by the Consent and Capacity Board to make a health decision in a specific matter.
• The spouse or partner of the client. A partner is defined in the HCCA as “either of two persons who have lived together for at least one year and have a close personal relationship that is of primary importance in both persons’ lives.” This means a partner does not need to be a spouse or sexual partner of the client.
• A child of the client or a parent of the client or the Children’s Aid Society who has been given wardship of the client.
• A parent of the client who does not have custody of the client.
• A sibling of the client.
• Any other relative.
• The Public Guardian or Trustee if there is no one else. If there are two equally ranked substitute decision-makers (e.g., two sisters of the client), and they cannot agree, the Public Guardian and Trustee may then make the decision.