Client consent is a fundamental aspect of ethical social work and social service work practice. At its core, consent is about respecting clients’ autonomy, their right to be informed and their ability to make decisions about their own lives.
In most practice contexts, consent is guided by common law principles, such as those found in Ontario’s Health Care and Consent Act, 1996. While exceptions exist, these principles help registrants navigate consent and capacity across a wide range of scenarios.
Below is a practical overview to support registrants in their day-to-day work with clients.
What Makes Consent Valid?
Unless legislation states otherwise, if the client is capable of giving consent, it is their consent that is required. Consent from a family member or next-of-kin only becomes relevant if the client is incapable of consenting.
For consent to be valid, it must be:
- Voluntary –the client’s decision is the product of their conscious mind.
- Informed – the client understands nature of the service, along with its potential risks and benefits.
- Given by a capable person – the client understands the information relevant to the specific social work/social service work intervention and can understand the reasonable consequences of consenting or refusing to consent.
Capacity is not “all or nothing.” The client may be capable of consenting to some services but not others. Capacity can also change over time. Clients are presumed to be capable unless there is evidence to suggest otherwise.
Determining capacity is the registrant’s responsibility when offering services. While the perspectives of colleagues or others may be helpful, registrants are expected to rely on their professional judgment, based on the specific decision and circumstances.
Capacity Considerations in Practice
The same test of capacity applies to all clients, regardless of age, cognitive impairment, if they are under the influence of drugs, intoxicated, mentally unwell or an involuntarily detained psychiatric patient.
Some key reminders:
- Capacity is decision-specific and time-specific. For example, the client with a developmental disability or Acquired Brain Injury (ABI) may be capable of making certain counselling decisions but not others. Capacity decisions must be made one decision at a time, at one point in time, one client at a time.
- Capacity can fluctuate. This is particularly relevant when working with clients experiencing dementia or age-related cognitive impairments. Clients may have varying degrees of capacity, and the focus must be on specific decisions or kinds of decisions to be made at any given time. Capacity may fluctuate, increase or decrease. Capacity to consent must be analyzed in terms of the client and the specific decision and issue.
- Capacity is not about agreeing with the client’s choice. A capable client has the right to make decisions others may see as unwise. The focus is on how the decision is made, not what decision is made.
Practice Tip
When determining capacity, slow the conversation down. Use plain language, check for understanding and revisit consent as circumstances change. This is especially relevant when working with clients whose capacity may fluctuate.
When Substitute Consent is Required
Substitute consent only arises whena registrant determines that the client is incapable of making the decision or legislation explicitly authorizes another person to make the decision.
Under the Health Care Consent Act, 1996, a substitute decision-maker must:
- follow the client’s known wishes of consent expressed while capable and is 16 years of age or older; or
- if no prior relevant wish is known or it is impossible to follow, make decisions of consent based on the client’s best interests.
The term “best interests” is defined broadly to include the client’s values and beliefs when capable, current wishes while incapable, general wellbeing and medical risks and benefits. Substitute decision-makers are entitled to all information necessary to make an informed decision.
Final Reflections
Capacity is fluid and context-dependent. Registrants are well-advised to visit the topic of consent regularly with their clients to ensure the client’s capacity for understanding their decision related to services they are receiving. If the client does disagree with a registrant’s determination of incapacity, they may challenge that decision through the Consent and Capacity Board.
Registrants are encouraged to refer to the below Standards of Practice to guide actions and decisions:
- Principle II: Competence and Integrity
- Principle III: Responsibility to Clients
- Principle IV: The Social Work and Social Service Work Record
The following College resources also provide helpful information on this topic:
- PHIPA Privacy Toolkit for Social Workers and Social Service Workers
- Practice Notes: “Setting the Table” – Issues to Consider When Initiating Client Conversations
- Practice Notes: Meeting Professional Obligations and Protecting Clients’ Privacy: Disclosure of Information Without Consent
- Practice Notes: Confidentiality and Disclosure of Information without Client Consent
Registrants may book a practice consultation with the College’s Professional Practice team or email practice@ocswssw.org with any questions.
In some acrimonious situations when capacity is unclear, registrants may wish to obtain legal consultation. The College does not provide legal advice or interpret the law.
This article draws on the Legal Guide for Social Workers and Social Service Workers by Robert Solomon, developed in consultation with the author.