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TRICKY ISSUES IN PROFESSIONAL PRACTICE

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eBulletin January 2019 v10 n1

At the Barbara Wand Seminar in Professional Ethics, Standards and Conduct, held on January 21, 2019 in Toronto, I presented Tricky Issues in Professional Practice. Due to time constraints, one scenario provided to participants in the handout was not reviewed. Below is the scenario and multiple-choice answers from the handout, followed by a discussion of this situation. The discussion only speaks to the various options presented in the scenario, so the answers indicated as “correct” are the right options of those given. There may be other options, not mentioned, for addressing this scenario.

Please note that the comments provided are intended as general information. The circumstances of an individual client and the details of a specific situation may influence how one handles an actual matter. As always, members are encouraged to seek consultation and/or independent legal advice if they are unsure of the best approach to an individual situation.

Consent to Service
A colleague was about to undertake an assessment.  As was her practice, she discussed both the limits of confidentiality and the service to be provided.  She then asked the client to sign her usual Consent Form indicating he understood and agreed with what was discussed.

The client reported that his lawyer told him that, while it was OK to participate in the assessment, he was not to sign anything.  Your colleague was satisfied that the client understood what had been discussed but she felt she was unable to continue as she believed that a signed Consent Form was required.  That is, verbal consent was not good enough. She asked for your input on this dilemma.

Of the following, which correct advice would you provide to her?

  1. Your colleague acted appropriately in discontinuing the assessment as written confirmation of an understanding of the limits of confidentiality and consent to service is required.
  2. Your colleague acted appropriately in discontinuing the assessment, although she didn’t need written confirmation of an understanding of the limits of confidentiality, such confirmation is necessary regarding consent to service.
  3. If your colleague was satisfied that the client understood the limits of confidentiality and the nature of the service to be provided, she could accept the client’s verbal consent.
  4. Both the Personal Health Information Protection Act, 2004 (PHIPA) and the Health Care Consent Act, 1996 (HCCA) specifically require written confirmation of informed consent.
  5. The Standards of Professional Conduct, 2017  anticipate the appropriateness of verbal consent as it permits “documentation of the process of obtaining verbal consent related to the member’s service to the client”.
  6. Since there is a lawyer involved in the matter, the assessment will probably end up before the courts; therefore, as a potential court matter, written consent is required.

Discussion
There is no legal requirement that one obtain written consent to document a client’s understanding of the limits of confidentiality or informed consent to service.  This is anticipated by the Standards of Professional Conduct, 2017 which, in describing the contents of the clinical file states, “The record shall include the following: “a copy of every written consent and/or documentation of the process of obtaining verbal consent related to the member’s service to the client;” [9.2(2)k)].  While there is no restriction on obtaining written consent to document the consent process, and it is generally accepted as “best practice”, there is no legislative requirement to do so.

In reviewing the choices provided to this scenario, only options 3. and 5. are correct.   While a colleague may certainly decide not to proceed without written consent, both options 1. and 2. state that written confirmation is required and discontinuing the assessment is necessary.  This is not the case. Rather, the decision not to continue is one to be made by the practitioner, if deemed appropriate.  Similarly, option 4. is not correct as neither PHIPA nor the HCCA require written consent.  As with options 1. and 2., option 5. is incorrect as the potential for court involvement does not automatically necessitate written consent.  Given that the situation may become litigious, a practitioner may decide to require a signed consent form, however this would be a matter of professional judgement rather than a legislative requirement.

In summary, obtaining written consent is generally viewed to be good clinical practice, but it is not a legislative requirement.  Rather, the requirement is that a member be satisfied that the consent obtained was informed and fully understood by the client.  A member may find there are circumstances in which accepting a client’s verbal consent is necessary or appropriate.  In such situations, one is expected to document the process undertaken to obtain verbal consent as per Principle 9.2 of the Standards.  

Note: this scenario does not address the matter of consent when one wishes to include a client’s name when making a mandatory report of sexual abuse.  In this situation, the client’s written consent IS necessary.  The Health Professions Procedural Code being Schedule 2 of the Regulated Health Professions Act, 1991 (RHPA) specifically states, “The name of a patient who may have been sexually abused must not be included in a report unless the patient, or if the patient is incapable, the patient’s representative, consents in writing to the inclusion of the patient’s name.” [85.3(4)]

For those who could not join us in person or by webcast for the January 2019 Barbara Wand Seminar, it, along with several previous Seminars, is available in the Archive of Past Barbara Wand Seminars on the College website.

R. Morris, Ph.D., C. Psych.
Registrar & Executive Director