Obtaining Consent for OT Services and Personal Health Information
OTs providing services to third party payers, or working as consultants, need to ensure they are obtaining informed consent from their clients for all occupational therapy services including assessment, treatment, and consultation. Although many individuals and organizations use consent forms, it is important to note that a consent form is not a substitute for the consent process. In accordance with the Health Care Consent Act, 1996 (HCCA) and the Standards for Consent, the process for obtaining informed consent must include information about the “nature, benefits, risks and side-effects of the service, alternative courses of action, and the likely consequences of not having the service. It must be obtained, recorded, dated, and maintained as part of the client record”3 . In other words, although a consent form is not a substitute for the consent process, OTs are required to document that informed consent has been obtained. For example, such documentation should include a record of whether a client understands the potential consequences if they refuse to consent to participate in an assessment required by their insurer. Clients must be given an opportunity to receive answers from the OT to questions they may have about the occupational therapy service being proposed and must be informed of their right to withdraw consent at any time.
When working in some areas of practice, there are situations where consent may be obtained by one health care professional on behalf of the other health care professionals involved with the client. This is called third party consent4 . In this situation, the OT should ensure that the third party who obtained consent did so using an informed consent process. This should be done prior to initiating occupational therapy services and the OT should document the name or role of the individual who obtained the informed consent from the client. It is the responsibility of the OT to obtain informed consent for ongoing services. Often clients seeking access to insurance benefits may be instructed to participate in activities required by the insurance company to be eligible for benefits. This does not constitute obtaining informed consent for occupational therapy services and the OT cannot rely on this as third party consent. OTs must use their judgement and be aware of relevant legislation regarding consent and their obligation to obtain consent as specified in the Standards for Consent.
In some cases, an OT may become involved in a client’s case through a legal representative. In these cases, the legal representative may be the one who is communicating the OT’s involvement in the case and seeking informed consent to engage the OT. Despite the consent obtained from the client’s representative, it would be prudent for the OT to review their role and scope of practice with the client, explain the process that will be occurring, discuss any treatment specifics and address any questions the client may have to ensure informed consent has been obtained.
During the assessment process or at any time during occupational therapy service delivery, a client may choose to withdraw their consent, or to not participate in some or all portions of the assessment or treatment. The OT should document the relevant information for the portions of the assessment completed and note where client consent was withdrawn along with any rationale provided by the client for the withdrawal. In addition, the OT should explain to the client any risks or consequences of the withdrawal of consent and document that this discussion occurred.
In addition to informed consent for services, OTs must also obtain knowledgeable consent for the collection, use and disclosure of personal health information. Under the Personal Health Information Protection Act, 2004 (PHIPA), consent is knowledgeable if it is reasonable in the circumstances to believe that the individual knows the purposes of the collection, use or disclosure and is aware that they have the right to give or withhold consent for the collection, use or disclosure of personal health information. This is particularly important in circumstances where reports have the potential to have serious implications such as influencing a client’s access to resources or funding.
OTs providing their services to third party payers or working as consultants often complete reports or forms as part of their practice. If a client withdraws consent for the submission of an assessment or treatment report prior to the completion of the report, the OT should discuss with the client the reasons for the withdrawal of consent, the implications of the withdrawal of consent and document this discussion in the client record. The OT should not complete or submit the report or form if consent for the disclosure has been withdrawn by the client or his or her representative, unless the OT is legally required to do so (such as in the case of a subpoena). The OT can submit any portions of the report that the client consented to and reference the fact that there is information missing because consent was withdrawn. A client cannot withdraw consent for the collection, use or disclosure of information retroactively, meaning, if a report has already been submitted, the OT is not in a position to retract the report.
OTs may be asked to review additional information such as surveillance material or reports from other health professionals, or they may be asked to complete additional paperwork such as rebuttals or addendums. If the OT has already completed the in-person client assessment, the OT must obtain the client’s consent prior to reviewing the additional information or completing the additional paperwork. The OT is required to obtain consent as this new information was not included in the initial consent obtained from the client for the collection, use and disclosure of information. In addition, reviewing the material with the client will permit the client an opportunity to provide context. For more information on surveillance, see the Guidelines: Use of Surveillance Material in Assessment.
In some cases, OTs will be required to submit their reports in draft format for review and editing. Although it is acceptable practice to have reports reviewed, the onus is on the OT to ensure the content of the final report accurately reflects the OT’s professional opinion. By signing a report an OT is attesting that the report is accurate, complete and truthful and does not contain statements that the OT knows or ought to know are false, misleading or otherwise improper. An OT should not agree to sign a revised document if the content does not reflect the OT’s professional opinion.
If a file or paper review is requested and the OT has not had any prior contact with the client, he or she does not need to obtain consent from the client. In this case, the OT is not required to obtain informed consent for services as they are not directly involved with the client. Nor is the OT required to obtain consent for personal health information as they were not responsible for the collection of the information.
Questions to ask yourself when obtaining consent:
a) Have you addressed all requirements outlined in the Health Care Consent Act, 1996 to obtain informed consent for OT services including assessment, treatment and consultation?
b) Have you documented in the clinical record that informed consent was obtained?
c) If a third party obtained consent, have you confirmed that they followed the appropriate process for obtaining consent for services and/or personal health information?
d) Have you obtained knowledgeable consent from the client to communicate with everyone who is involved in the client’s case including the submission of reports to third parties?
e) Do you understand your responsibilities for privacy and confidentiality if the client or their representative withdraws consent prior to the completion of your occupational therapy services or submission of any reports?