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Health, Privacy

Doctors need consent to treat you, share medical info: Levine

When it comes to health care, patients should know there are two distinctly different types of consent, says Vancouver privacy and health law lawyer Sara Levine.

“Most people understand that, generally, they have the right to consent, or refuse, health care. You can’t be given drugs and you can’t have medical procedures performed on you without your consent,” says Levine.  

In addition to getting your permission to be treated, anyone who wants to share your personal health information also needs to secure your consent, she tells AdvocateDaily.com

But health-care professionals can sometimes forget these two distinct types of consent, Levine says. In British Columbia, for instance, they are regulated by different statutes and have separate criteria.

“Privacy law allows the patient’s consent to the collection, use and disclosure of their personal information for the purpose of providing them with health care to be treated as implied,” Levine says.

"Nevertheless, often the patient intake form includes a statement that personal health information will be shared as necessary to provide care. Space is left on the form for the patient’s signature," she says. "Once signed, the form is a record of the patient’s express consent to collection, use and sharing for the purposes stated on the form. This is generally sufficient unless the provider adds new purposes or the patient withdraws or modifies their consent." 

But, Levine says, the same can’t be said about consent to health care and treatment. 

There are several conditions that must be met for an adult’s consent to meet the “informed consent” standard, she says.

"The patient must have capacity; be told enough to understand their condition, the proposed care, and the risks, benefits and alternatives," says Levine. "They must be given a chance to ask questions and get answers about the proposed care. The consent must be given voluntarily, and not be obtained by fraud or misrepresentation.

"This means that getting consent to health care and treatment can’t be a one-off paper-based exercise," she says.

For consent to treatment, forms are important to create a record of the patient’s consent, but forms alone won’t meet the “informed consent” standard, says Levine.  

Levine says there are also rules around getting both types of consent from minors, and for a patient who doesn’t have capacity. There is also a requirement that, should that individual regain capacity, the health-care provider needs to go back and seek consent directly from that patient, she says.

And, while sharing information with other healthcare providers may be implied, sharing with family members may not be, depending on the circumstances. Levine warns that providers should be alert to any potential concerns with privacy in relation to family members. 

“What we often see is, because health-care providers work with confidential information all the time, and providing treatment is the core of their job, it becomes very routine," says Levine.

"Sharing information for the purposes of delivering health care, moving ahead with a treatment plan, and talking to family members, can all become very routine,” she says. “And what can happen is that providers sometimes forget that while they overlap, the patient’s consent for these activities are distinct. And they may change when circumstances change.

"So the provider’s records need to be distinct so that they show they’ve got both types of consent," she adds.

Levine says that in addition to privacy laws and consent-to-treatment laws, health-care professionals also need to be aware of their regulatory body's rules and codes of conduct. Those could include additional requirements about record-keeping, or about what and how they communicate with their patients.

She says the best way for health professionals to keep on top of consents is to create and follow written office procedures and processes. Reviewing these procedures every few years will ensure that they stay current with the laws and regulations that apply to their practice. 

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