On August 7th, 2024, the Divisional Court of the Ontario Superior Court of Justice released an important decision, summarized below, affirming the rights of children with capacity to make decisions about their own health care under Ontario’s Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A.
Background
Facts
In June 2018, a complaint of professional misconduct was made against a physician (“the Physician”) by the parents of a 7-year-old Indigenous child pursuant to a series of events that unfolded on May 26th, 2018. Amongst other things, the parents complained that the Physician conducted a vaginal examination on their child, “JDSP,” without her consent, and racially discriminated against the family.
The family had attended the hospital where the Physician worked because the child was experiencing painful urination. Shortly after the Physician met with the family, she began screening for child sexual abuse and domestic violence, questions that seemed completely irrelevant to the child’s medical needs.
Instead of reviewing the urine screen for indicators of infection as requested by the parents, the Physician conducted a genital examination of the child despite her clear and unequivocal refusal thereof. The child physically resisted the examination and repeatedly told the Physician “no.” Resultantly, the medically unnecessary genital examination was performed on the seven-year-old child against her clear wishes.
In response to the complaint, the Physician claimed, amongst other things, that she believed the child’s consent to the genital examination was “implied” through JDSP’s mother, who encouraged her daughter to permit the examination.
Complaints Procedure
In Ontario, complaints of professional misconduct are made to the College of Physicians and Surgeons (“the College”). An investigator is then assigned by the College, and they gather information and submit a report to be considered by the College’s Inquiries, Complaints and Reports Committee (“the Committee”). The Committee then decides if the College should take action.
Actions the College may take include: advising the doctor how to improve their practice or conduct or requiring remedial self-study; requiring the doctor to agree to an undertaking to improve or restrict their practice; ordering the doctor to take courses to improve their skills or practice; issuing a verbal caution; or referring concerns about the doctor to the Ontario Physicians and Surgeons Discipline Tribunal.
Decisions of the Committee are reviewable by the Health Professions Appeal and Review Board (“the Board”). When tasked with a review of the Committee’s decision, the Board may confirm, reverse, or modify the Committee’s recommended courses of action. The Board may also require the Committee to undertake specific steps.
The Board’s decisions are in turn reviewable by the Court and may be subject to judicial review.
Legal History of the Case
In the case at bar, there is a long and complex procedural history.
Following an investigation of the complaint, and upon review of the facts in the report before it, the College’s Committee issued its initial decision of January 9th, 2019, instructing the Physician to produce a remedial report acknowledging her need for education in pediatric genital examinations. On April 11th, 2019, JDSP’s parents asked the Board to review this investigation and decision, and on September 19th, 2020, the Board decided to return the matter to the Committee for re-investigation.
Upon its re-investigation, the Committee decided to issue further advice to the Physician which envisioned a gentler method of administering healthcare. Specifically, the Committee advised the Physician to approach clinical encounters with a trauma and bias-informed lens, to have conversations with patients’ families in private settings, and to abide by the guidelines for pediatric genital examination. However, in making this decision, the Committee did not directly engage with the issue of consent.
On February 11th, 2022, JDSP’s parents requested the Board to review the Committee’s second decision. This time, the focus of the parents’ complaint was the Committee’s treatment of the Physician’s non-consensual genital examination of JDSP. In upholding the Committee’s second decision, the Board cited, amongst other things, how the Physician believed consent was implied by JDSP’s mother and that the genital examination was medically warranted.
JDSP’s parents then sought judicial review of the Board’s second decision which found the Committee’s second decision to be reasonable. The parents then sought judicial review of this decision, contending that the Board unreasonably upheld the Committee’s decision.
The Judicial Review – Main Legal Issues and Judgement
The core issue upon judicial review was whether the regulatory bodies, in reviewing the complaint, had failed to engage with health care consent law as it applies to minors. Specifically, whether the Board’s second decision was unreasonable in upholding the Committee’s treatment of the issue of consent?
In answering this question in the affirmative, the Court highlighted three problems with the Board’s assessment of the Committee’s approach to the issue of consent:
(1) The Board unreasonably equated the presence of clinical indications for a treatment with the presence of consent to treatment ;
(2) The Board erroneously found that an assertion of “implied consent” is a disputed fact which absolves the Committee of considering consent issues in these circumstances; and
(3) The Board unreasonably found that the Committee’s second decision responded to the issue of consent
(1) Clinical indication that treatment is appropriate is not the same as consent
The Court noted that in upholding the Committee’s decision, the Board, amongst other things, referred to evidence suggesting that the genital examination was clinically indicated or medically justified. However, the Court found that: “[g]iven that the issue before the Board was the reasonableness of the ICRC decision vis-à-vis consent, a finding of clinical indication is simply not responsive to those concerns.”
Furthermore, the Court expressed concern that a necessary, unwarranted deduction of the Board’s line of reasoning would be that patients could only withdraw consent for treatments that are not clinically indicated. Such rationalization is not consistent with the Health Care Consent Act and therefore, is not reflective of the law of consent in Ontario. Ultimately, the Court rejected the Board’s analysis and affirmed that clinical justification does not amount to consent.
(2) An assertion of “implied consent” is not a disputed fact that absolves the ICRC of considering consent issues in these circumstances
The Court noted that both the Committee and the Board implied in their reasoning that the Physician’s reliance on implied consent from JDSP’s mother nullifies JDSP’s clear lack thereof. Ultimately, by citing the Board’s own reasoning in Guertin v Long,[1] the Court dismantled this line of reasoning and reaffirmed the prevailing law that an assertion of “implied” consent can never override a patient’s express lack or refusal of consent.
(3) The Board unreasonably found that consent had been adequately considered by the Committee
The Court noted that both the Committee and the Board avoided any direct consideration of the consent issue at hand. Despite it being a material concern raised by the Applicants from the very start of their complaint process, both the Committee and the Board seemed to have completely ignored it. The Committee, while acknowledging that JDSP’s parents “felt” that the examination was performed without JDSP’s consent, did not make any discernible finding on the matter. The Committee simply did not engage with the critical issue of consent in this complaint. As a result, the Board’s finding that the Committee’s decision was justified and reasonable, despite its failure to engage with such a core issue, was declared unreasonable by the Court.
Pursuant to the above three errors that plagued the Board’s reasoning, the Court ultimately granted the parents’ application for judicial review and found that the Board’s second decision was deficient. That is, the Board’s finding that the Committee adequately addressed the issue of consent in its second review was deemed unreasonable.
Upon contemplating the public’s interest, the Court decided against remitting the matter back to the Board for a third consideration. Specifically, the Court recognized that six years had passed since the original complaint was made, the Physician explicitly acknowledged her need to respect the consent rights of minor patients going forward, and the Applicants were provided with the opportunity to benefit from a full hearing. Overall, the Court found that the decision served as a reaffirmation of the law of consent in Ontario.
Analysis
This judgement boasts two noteworthy aspects. The first is the succinct way in which it clarifies that the clinical indication of a treatment can never amount to consent to said treatment. In a mere three paragraphs, the Court swiftly dismisses what could otherwise serve as a significant defence for physicians in the province. This brief analysis should be interpreted as a conclusive statement by the Court that the (demonstrable) clinical indication of a medical treatment or procedure cannot override an explicit lack of consent. There is no exception to this firm stance nor any ambiguity leaving room for unprecedented interpretations. The door appears to have been firmly shut by the Court on this matter.
This case is also important from a child rights and health law perspective because it confirms that consent is “not a collateral or minor issue.” A child has just as much of a right to consent to treatment as an adult, if they have capacity. The fact that the Physician believed the treatment she was giving was “clinically indicated” and/or that she had “implied consent” might be a rationale, but that belief could not, and did not, displace the child’s legal right to refuse treatment, as the doctor did not assess the child’s capacity or rely on substituted consent.
In explicitly reaffirming the law of consent in Ontario, specifically as it pertains to young persons, this decision marks a pivotal moment in the province’s recognition of capable children’s indisputable right to consent to medical treatments. As such, this judgement is of immense legal value to children interacting with the healthcare sector in Ontario. By bringing clarity to what may otherwise be viewed as a murky area of law – that is, the medical consent rights of minors – this case provides much-needed and much-appreciated legal clarity.
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