Informed Consent Part II

You are a physiotherapist working in a large teaching hospital that services a large population of Canadians who have emigrated from countries where languages other than English or French are spoken. It is not uncommon for you to be in a situation with a patient where you are unable to communicate because you do not speak or understand a common language.

You have received an order to see an elderly gentleman who initially came unaccompanied to the emergency department with a productive cough and fever. Examination and a chest X-ray revealed dehydration, suspected malnourishment and a right lower lobe consolidation. He was admitted to hospital for further tests, and chest physiotherapy has been ordered for his diagnosis of right lower lobe pneumonia. You enter the room and observe an older, rather frail-looking gentleman who is nodding pleasantly as you enter the room. It becomes quickly apparent that he does not understand or speak any English. Prior to going into the patient’s room you read the information contained in the patient’s chart that confirmed his diagnosis and provided you with knowledge about his vital signs and current health status. You approach the bedside and the patient takes his arms out of his Johnny shirt exposing his chest and leans forward in the bed. You conduct a respiratory assessment and identify abnormal breath sounds and determine that chest physiotherapy is indicated for this patient.

Under the Health Care Consent Act, you are obligated to obtain informed consent for treatment from the patient prior to initiating the treatment.

What should you do?

Analysis

Under the principles of common law, physiotherapists have always been required to obtain consent prior to providing physiotherapy services. The College has consistently fostered the professional obligation of physiotherapists to obtain consent for assessment and treatment; however, it was not until the enactment of consent legislation, including the Health Care Consent Act (HCCA) and the Substitute Decisions Act that the requirements related to obtaining consent from patients who were incapable of giving consent became explicit.

It is important to know that the inability to communicate with a patient due to a language barrier does not constitute incapacity on the part of the patient. Similarly, a patient’s age alone does not determine incapacity.

In this scenario, the physiotherapist could reasonably interpret the patient's actions prior to the initiation of the chest assessment as implied consent. However, the obligations under the HCCA around getting consent for a proposed treatment require the physiotherapist to make a judgment about whether or not the patient is capable of understanding:

The condition for which the treatment is proposed;
The nature of the treatment;
The risks and benefits of the treatment; and
The alternatives to the treatment, including declining treatment.

The challenge in this scenario is that, in the absence of any other signs that could be judged by the physiotherapist as indicators of the patient’s incapacity, the physiotherapist is really faced with a communication dilemma rather than an issue of incapacity.

Communication with the patient through a trained interpreter or a family member for the purpose of obtaining informed consent is required in order for the physiotherapist to fulfill his or her obligations under the HCCA. When the physiotherapist has no reason to believe that the patient is incapable of providing consent, it is important for the physiotherapist to explain to the individual acting as an interpreter that their role is not to give consent on behalf of the patient but rather to facilitate communication between the physiotherapist and the patient.

If, however, during the course of the conversation with the patient through the use of the interpreter, the physiotherapist makes a judgment about the patient’s capacity to understand any of the four items listed above, consent should be sought from the highest-ranking substitute decision maker listed in the HCCA. A physiotherapist is entitled to rely on the accuracy of a substitute’s assertion about his or her rank and qualifications, unless it is unreasonable to do so in the circumstances.

If situations such as these occur regularly in a practice setting, health professionals working in the facility who have obligations under the HCCA may wish to collaborate in the development of organizational policies and or mechanisms aimed at addressing situations similar to this one.