Before an audiologist or speech-language pathologist begins to provide screening, assessment and/or treatment services, it is necessary to obtain a valid consent. It is the responsibility of the audiologist or speech-language pathologist who proposes the screening, assessment and/or treatment services, to ensure a valid consent has been obtained before the service is provided. To be valid, the consent must:

• Be informed.
• Be given voluntarily.
• Not be obtained through misrepresentation or fraud.
• Relate to the service being proposed.

For example, it would not be valid for a CASLPO member to obtain consent for any and all services, unspecified, for a given year. However, it is valid to obtain consent for specific services that may be administered over a month, even a year or longer.

Informed consent under the Health Care Consent Act, 1996 (HCCA) means that before agreeing to the service, the patient/client or substitute decision maker has received information about the following six matters that a reasonable person in the same circumstances would require in order to make a decision about the service. In addition, the person must have received responses to his or her requests for additional information about those six matters. The six matters are:

• The nature of the service.
• The expected benefits of the service.
• The material risks of the service.
• The material side effects of the service.
• Alternative courses of action.
• The likely consequences of not having the service.

Material risks and side effects are:

• Those which are probable or likely to occur.
• Those that are possible rather than probable, but can have serious consequences.

An audiologist or speech-language pathologist is entitled to presume that consent to a service includes:

• Consent to variations or adjustments in the service, if the nature, expected benefits, material risks and side effects of the changed service are not significantly different from the nature, expected benefits, material risks and side effects of the original service.
• Consent to the continuation of the same service in a different setting if there is no significant change in the expected benefits, material risks or side effects of the service as a result of the change in the setting

Example: A patient/client has obtained an appointment at the office of a CASLPO member and arrived at the office. Even though the patient/client has initiated the appointment and come to the office, the patient/client has not provided informed consent because the patient/client has not been provided with the above required information.

The requirement to obtain consent to a service applies equally to all service settings. In a hospital setting, a referral from a physician does not eliminate the necessity to obtain consent. In a community setting, a referral from an agency such as a Community Care Access Centre (CCAC) is not sufficient. Requirements for consent also apply to CASLPO members in the education system, who provide services to children attending school. In all cases, consent must be obtained for the specific services being offered.

However, a member is not required to personally obtain the required consent; rather a member can assign the task of obtaining the consent to the member’s services to another person. Nevertheless, the member maintains the full responsibility of ensuring that the consent obtained is valid.

Example: In a CCAC setting, when the CCAC administrator obtains consent from the patient/client or substitute decision-maker for the CCAC services, the administrator could also present the necessary information regarding the speech-language pathology services that will be provided. If the patient/client or substitute decision-maker then consents, the member is not required to seek consent again when initiating services. However, the member remains fully responsible for ensuring that the information required for consent was presented by the CCAC administrator and that responses to any requests for additional information have been provided.

Similarly, where member services are offered by a school board, a member could assign the task of obtaining the consent to the proposed services to another person, such as a special education teacher or a teacher of the deaf and hard of hearing. Here again, however, the member must ensure that the consent obtained is valid.

A valid consent can be verbal or written. Written consent is not required. Consent, even if it is signed, is not valid unless it is informed.

The consent may be express (verbal or written) or implied. With implied consent, the patient/client indirectly accepts or refuses a proposed service through his or her actions.

Under CASLPO’s Proposed Regulation for Records (2011), members must document every verbal or written consent received. When documenting verbal consent, CASLPO members must indicate that the required information pertaining to the proposed service was discussed and that consent was received from the patient/client. Members may wish to develop a checklist of information that is discussed when obtaining consent and include that in the record or make reference to such a checklist in the record.

There is no requirement for the member to speak to or meet with the patient/client or substitute decision-maker to obtain consent. The CASLPO member, however, must be satisfied that consent, as defined by the HCCA, has been obtained.

It is the responsibility of the audiologist or speech-language pathologist who is proposing the service to determine if a person is capable of giving or refusing consent to the proposed service. A person is presumed to be capable of making a decision about a service. An audiologist or speech-language pathologist is entitled to rely on the presumption of capacity unless he/she has reasonable grounds to believe that the person is incapable of making a decision about the service. A person is capable with respect to a service if the person:

• Is able to understand the information that is relevant to making a decision about the proposed service, and
• Is able to appreciate the reasonably foreseeable consequences of either making a decision or not making a decision.

Example: An audiologist recommends a hearing aid for a 10 year old child with a moderate hearing loss. The audiologist explains what a hearing aid does, and its risks and benefits in a language that is appropriate for the child. The child appears to understand this information, but refuses to consent to using a hearing aid. The child bases his decision on the cosmetics of the device, but does not appreciate the consequences that not using amplification will have on his language development and academic performance. Thus the child would be considered to be incapable, and consent would be obtained from the substitute decision maker, ie his parent.

CASLPO member may not presume that a person is incapable with respect to a proposed service based solely on one or more of the following factors:

• The existence of a psychiatric or neurological diagnosis.
• A refusal of a proposed service that is contrary to the advice of a CASLPO member, or other practitioner. A request for an alternative service.
• The person’s age.
• The existence of a disability, including a speech, language or hearing impairment.

Example : A speech-language pathologist cannot presume that a person is incapable of consenting to an assessment based solely on the fact that the person has a diagnosis of mild depression, aphasia or that the person is 12 years old.

As a general guideline:

• a child under 7 is incapable of consent for almost any treatment
• a child between ages of 7-12 can very rarely have capacity to consent to treatment
• a youth over 12 needs to be carefully assessed as to capacity on a case by case basis

By virtue of their unique and specialized training, audiologists and speech-language pathologists recognize that the existence of a communication difficulty is not sufficient to presume a patient/client is incapable of giving or refusing consent. However, providing or refusing to provide express consent may pose a significant challenge for individuals with a communication impairment. Nevertheless, the HCCA recongnizes this possible challenge by allowing for implied consent through the use of gestures.

A person may be incapable with respect to some services, such as major surgery, but be capable with respect to other services such as speech-language therapy or the use of a hearing aid. A person may also be incapable with respect to a service at one time but capable at another.

Example: A patient/client who recently experienced a cerebral vascular accident may be incapable of consenting to a service initially, but become capable later. Patients/clients with psychiatric disorders may be capable at some times but not others.

If a person was determined to be incapable, and a substitute decision maker provided consent to a service, and the person later becomes capable with respect to that service, then the person’s own decision to give or refuse consent to the service governs.

Under the HCCA, when a person is found to be incapable by an audiologist or speech-language pathologist with respect to a service, that audiologist or speech-language pathologist is required to follow guidelines established by CASLPO as to the information to be provided to their patients/clients about the consequences of the finding of incapacity.

The CASLPO member has an obligation to inform the patient/client in a manner appropriate to the patient/client’s capacity.

CASLPO has established the following guidelines for informing incapable persons:

• The CASLPO member must tell the incapable person that a substitute decision maker will assist the patient/client in understanding the proposed service and will be responsible for making the final decision.
• The CASLPO member should still involve the incapable person, to the extent possible, in discussions with the substitute decision maker.
• If the patient/client disagrees with the finding of incapacity, the CASLPO member must advise the patient/client of their right to apply to the Consent and Capacity Board (CCB) for a review of the finding of incapacity.
• The CASLPO member should assist the person in exercising these options if he or she indicates a wish to do so.

A person who has been found incapable with respect to a service has a right to challenge this finding before a tribunal called the Consent and Capacity Board (CCB). Provision of the audiology or speech-language pathology service must not begin until one of the following occurs:

• 48 hours have passed since the CASLPO member was first informed of the intended application to the CCB without an application being made.
• The application to the CCB has been withdrawn.
• The CCB has rendered a decision and no party has indicated to the CASLPO member that he or she plans to appeal.
• One of the parties to the application before the CCB has informed the CASLPO member that he/she intends to appeal the CCB’s decision and the time period for starting the appeal has expired without an appeal being started or the appeal of the CCB’s decision has been finally disposed/determined.

These restrictions on initiating a service do not apply if the CASLPO member believes there is an emergency, as defined in the HCCA.

When a CASLPO member is proposing a service and believes that the person is incapable of providing or refusing consent with respect to that service, a substitute decision maker would be asked to make a decision on behalf of the incapable person. The hierarchy of substitute decision makers is as follows:

• Guardian of the person, provided that the guardian has the authority to give or refuse consent to the service.
• Attorney for personal care, provided that the power of attorney provides authority to give or refuse consent to the service.
• A representative appointed by the Consent and Capacity Board, if the representative has authority to give or refuse consent to the service.
• Spouse or partner.
• Child, parent or children’s aid society.
• Parent with right of access only.
• A brother or sister.
• Any other relative.
• The Public Guardian and Trustee.

In order to qualify as a substitute decision maker, a person must meet all of the following criteria:

• Be capable with respect to the service.
• Be at least 16 years old. The only exception is if the person under 16 is the incapable person’s parent.
• Not be prohibited by a court order or separation agreement from having access to the incapable person or from giving or refusing consent on the incapable person’s behalf.
• Be available.
• Be willing to assume the responsibility of giving or refusing consent.

In order to determine who is the highest ranking substitute decision maker, the CASLPO member simply has to ask the person if they are aware of any higher ranked substitute decision maker. Normally the highest ranked substitute decision maker gives or refuses consent unless:

• The highest ranked substitute decision maker is not capable, available or willing to act in this role. In such a case, one approaches the next highest ranked substitute decision maker.
• If two or more persons of equal rank disagree about whether to give or refuse consent to the service and if their claims rank above all others, then the Public Guardian and Trustee shall make the decision.

The substitute decision maker must make decisions based on the person’s known wishes, whether verbal or written. However, these wishes must have been expressed while the person was capable and was at least 16 years old. If there are no known wishes or if it is impossible to comply with those wishes, the substitute decision maker (SDM) must make the decision based on the incapable person’s best interests. In doing so, the SDM must take into consideration the following:

• The values and beliefs of the incapable person when incapable.
• Any wishes expressed by the incapable person with respect to the service.
• Whether the service is likely to improve the incapable person’s condition or well being, likely to prevent the incapable person’s condition or well-being from deteriorating, or likely to reduce the rate at which the incapable person’s condition or well-being is likely to deteriorate.
• Whether the incapable person’s condition or well-being is likely to improve, remain the same or deteriorate without the service.
• Whether the expected benefits of the service outweigh the risks of harm to the incapable person.
• Whether a less restrictive or less intrusive service would be just as beneficial as the proposed service.

The HCCA provides audiologists and speech-language pathologists with the power to make an application to the Consent and Capacity Board if the CASLPO member who proposes the service believes that the SDM has not acted in accordance with the person’s expressed wishes or in the best interests of the incapable person, as outlined above. The Board will then make a determination if the SDM complied with the legislation. This is a significant change over the previous legislation which did not provide any guidance to practitioners in this situation.

Audiologists or speech-language pathologists have no authority to provide a service without consent except in an emergency, as defined in the HCCA. A situation can be considered an emergency if the person for whom the service is proposed is apparently experiencing severe suffering or is at risk, if the service is not administered promptly, of sustaining serious bodily harm. In such cases, as long as certain additional criteria are met, the service can be administered without consent. For example, a service may be administered without consent to an incapable person if there is an emergency and the delay required to obtain a consent or refusal to consent will prolong the suffering that the person is apparently experiencing or will put the person at risk of sustaining serious bodily harm. After administering a service in an emergency, the audiologist or speech-language pathologist must make a note in the person’s record. There are exceptions to providing a service in an emergency. Audiologists or speech-language pathologists cannot administer a service in an emergency if he/she has reasonable grounds to believe that the person, while capable and at least 16 years old, expressed a wish to refuse consent to the service.

The HCCA provides audiologists and speech-language pathologists with protection from liability under a number of circumstances. When an audiologist or speech-language pathologist acts in good faith, then he or she is not liable if, on reasonable grounds, he/she believes that:

• A service is administered because the patient/client or substitute decision maker consented to the service.
• A service is not administered because the patient/client or substitute decision maker refused the service.
• A service is withheld or withdrawn because the patient/client or substitute decision maker consented to a plan of service that included withdrawing or withholding the service.

In addition, an audiologist or speech-language pathologist who, in good faith, administers a service in an emergency, as defined in the HCCA, is not liable for administering the service without consent.

No. Even though the patient/client’s coming to a member’s office for a service may imply that the patient/client is consenting to the service, this is not a valid consent because it is not an informed consent.

Under the Health Care Consent Act, 1996 (HCCA), informed consent means that before agreeing to the service, the patient/client or substitute decision maker has received information about the nature, expected benefits, materials risks and side effects of the service along with any alternative courses of action, and the likely consequences of not having the service that a reasonable person in the same circumstances would require in order to make a decision about the service. In addition, the person must have received responses to his or her requests for additional information about these matters.

Once this information has been provided, the patient/client’s or substitute decision maker’s consent may be express or implied.

The Health Care Consent Act, 1996 states that a person is capable with respect to a service if the person is able to understand the information that is relevant to making a decision about the service offered and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

It is the responsibility of the audiologist or speech-language pathologist who is proposing the service to determine if a person is capable of giving or refusing consent to the proposed service. A person may be incapable with respect to some services, such as major surgery, but be capable with respect to other services, such as speech-language therapy or the use of a hearing aid. In addition, a person may also be incapable with respect to a service at one time but capable at another time.

If the patient/client is determined to be incapable, consent or refusal to consent must be obtained from the substitute decision maker. Audiologists or speech-language pathologists have no authority to provide a service without consent except in an emergency, as defined in the HCCA.

Please note that written consent is not required. Verbal consent is equally acceptable, and members are required to document in the patient/client record that they have received the verbal consent. They do so, by noting in the record that the required information pertaining to the proposed service was discussed and verbal consent was received from the patient/client.

By virtue of their unique and specialized training, audiologists and speech-language pathologists recognize that the existence of a communication difficulty is not sufficient to presume a patient/client is incapable of giving or refusing consent.

However, providing or refusing to provide express consent may pose a significant challenge for individuals with a communication impairment. Nevertheless, the HCCA recognizes this possible challenge by allowing for implied consent through the use of gestures. As communication professionals, members can ensure that all reasonable steps are taken to allow patients/clients to understand the information provided and express their decisions relating to the services to be performed by members, independent of their communication difficulties.

An article in the August 2005 issue of CASLPO Today entitled "Facilitating Informed Health Care Consent for Individuals with Communication Impairment," available here, provides some suggestions on obtaining consent from patients/clients with communication difficulties, to assist in ensuring that patients/clients are given every opportunity to engage in a partnership with the member when service decisions are made.

The consent may continue to be valid over a period of time if the consent was specific to the service(s) offered. Thus it is valid to obtain consent for a specific plan of service that may be administered over a month, even a year or longer.

"Blanket" consents for services are not acceptable, as consent must relate specifically to the service(s) given. For example, it would not be valid for an audiologist or speech-language pathologist to obtain consent for any and all services for a given year.

A member is not required to seek a new consent if only minor changes are being made. A member is entitled to presume that consent to a service(s) includes:

• Consent to variations or adjustments in the service(s), if the nature, expected benefits, material risks and side effects of the changed service(s) are not significantly different from the nature, expected benefits, material risks and side effects of the original service(s).
• Consent to the continuation of the same service(s) in a different setting if there is no significant change in the expected benefits, material risks or side effects of the service(s) as a result of the change in the setting.

Powers of attorney are documents in which a person, usually referred to as the grantor, authorizes another person(s) to make decisions on their behalf. The Substitute Decisions Act, 1992, provides for two kinds of powers of attorney – a power of attorney for property and a power of attorney for personal care. The person to whom the power has been granted to make decisions regarding personal care (health care, nutrition, shelter, clothing, hygiene or safety) is referred to as the attorney for personal care. For example, if the grantor becomes incapable, the attorney for personal care can make health care decisions under the Health Care Consent Act, 1996 on their behalf, subject to any conditions, restrictions and instructions in the power of attorney for personal care.

A "substitute decision maker" is a term used in the Health Care Consent Act, 1996 (HCCA) to refer to a person who can make a decision about a proposed treatment on another person’s behalf if the person is found to be incapable with respect to that treatment. The HCCA establishes a hierarchy of substitute decision makers who can give or refuse consent to a proposed treatment on another person’s behalf if the person is found to be incapable with respect to that treatment. One of the substitute decision makers described in the HCCA is the attorney for personal care, provided that the power of attorney provides authority to give or refuse consent to the treatment.