When a patient’s family is engaged in a dispute among themselves, physicians may be left feeling caught in the middle and unsure as to what to do. Such disputes could, for example, involve child patients with parents who are separated or divorced, or elder patients with declining capacity. In these situations, family members can sometimes have concerns and disagreements about who is authorized to consent to treatment or to access the patient’s medical information.
Disputes also commonly arise after a patient has died, and family members disagree about the validity of the will or whether the patient had the requisite mental capacity at the time the will was last executed. Physicians may be uncomfortable when asked by the family for a medical opinion or evidence.
Being familiar with the legal framework governing these situations can help physicians mitigate an escalation of such disputes and reduce the risk of a complaint.
Disputes involving children
In family disputes related to access to children’s medical records or the care of children, one of the questions to be addressed is, who is legally authorized to consent for the child? As a starting point, physicians should look to the patient for consent, if the patient is capable. If the child is incapable of consenting to treatment or to disclosure of medical information, parents or legal guardians with decision-making responsibility (custody) will typically be legally authorized to consent on behalf of the child.
In Canadian common law jurisdictions (all provinces except Québec), a child's ability to provide consent depends on whether he or she appears to have a full appreciation of the nature and consequences of the decision. Minors who are capable of consenting to treatment will normally also have the capacity to control their personal health information. The concept of "mature minor" is not applicable in Québec, where the age of consent is generally established at 14 years.
Even in cases where the child’s parents are separated or divorced, both parents will typically have the right to provide or refuse consent for treatment on behalf of the child and to access the child’s medical information, unless an agreement or court order specifically modifies the rights of the parents.
Communication problems can arise when a physician receives conflicting directions from parents. Physicians should deal with both parents in a manner that is respectful and that recognizes the parents’ legal rights. To clarify the authority of each parent to consent on behalf of the child, physicians may request copies of agreements or court orders regarding decision-making responsibility (custody) and parenting time (access). These copies should be kept on file.
Consent to treatment
Physicians may proceed with necessary treatment on the basis of consent provided by one parent with decision-making responsibility (custody). As with married parents, however, obtaining consent from both parents is prudent when the treatment could be perceived by one parent as controversial or entails serious risk to the child.
When there is a dispute between the parents about the child’s treatment, the physician should make reasonable attempts to obtain a consensus in the child’s best interests. If consensus cannot be achieved, physicians in hospital settings are encouraged to contact their hospital ethicist for guidance (if available), and all member physicians may contact the CMPA for further advice. In some cases, it may be necessary to contact the public guardian, child services, or to apply to the court (or an administrative body) for direction. If the child is at serious risk of harm, contacting the provincial or territorial child welfare agency may be warranted.
Letters of support in decision-making responsibility (custody) disputes
In decision-making responsibility (custody) disputes, physicians may be requested to write a letter of support for a parent on the basis of information provided by the parent making the request. Physicians should avoid including information provided by the requesting parent without appropriately qualifying the statements and identifying the source of the information. Physicians who find themselves in these circumstances should try to remain helpful, but they should limit discussion to professional interactions with the requesting parent, maintain objectivity, and properly attribute all statements.
Disputes involving elder patients
Managing family disputes can be similarly challenging when they involve elder patients with cognitive impairment, and family members disagree over treatment or other aspects of the patient’s ongoing personal care.
In these circumstances, consent should be obtained by the appropriate substitute decision-maker (SDM). The SDM may be appointed by the patient through a legal document, such as a personal directive or power of attorney, or by the courts.
Legislation in most provinces and territories also provides a means of obtaining substitute consent when the patient is deemed to be incapable. The legislation typically sets out a hierarchy or prioritized list of individuals authorized to give or refuse consent on behalf of the patient. It is necessary to begin by seeking substitute consent from the highest-ranking person on the list, typically the patient's spouse, parent, or children. If the patient has no immediate family, or the highest-ranking person is not readily available or willing to make a decision within the required time, substitute consent can be obtained from the next highest-ranking and available person on the list. It is important for physicians to be generally familiar with the criteria for substitute decision-making in their jurisdiction.
Where there is documentation of the legal authority for the individual to provide consent (e.g. power of attorney, personal directive, or court order), the physician should request a copy and keep it in the medical record.
When family members with equal authority disagree about care decisions, an amicable resolution of these issues should be encouraged. These discussions should include an assessment of the goals of care in a manner that is compassionate and patient-centred, and should be documented in the medical record.
If consensus cannot be achieved, it may be necessary to seek guidance from a hospital ethics committee (if available), the court (or administrative body), or the public guardian or curator. Members are also encouraged to contact the CMPA immediately when faced with any difficult consent and capacity issues or when uncertain about what resources might be available in the event of disagreement with an SDM or among family members.
Access to elder patients’ medical information
Physicians sometimes receive requests for information from family members who are in the midst of a dispute concerning the care of an incapable elder patient, or following the death of the patient. When this happens, physicians should consider whether they have the necessary authorization to disclose the patient’s information, including whether the patient’s SDM has consented, in accordance with a court order or when authorized by legislation. Sometimes it may be necessary to request and carefully consider written authorization (e.g. power of attorney, court order, written consent of the substitute decision-maker).
In instances where the patient is deceased, it is prudent to first verify that the party making the request is authorized to access the information. The legal representative of the deceased patient (e.g. the administrator or executor of the estate) will generally be authorized to access medical information.
In most jurisdictions, there are limitations on the nature of information that family members may access when they are not the deceased’s legal representative.1
Risk management considerations
Physicians should consider the following recommendations when providing care to children or to elder patients with cognitive impairment:
- Remember that each parent may generally consent to necessary treatment and access information about the minor child, unless the child is considered a mature minor (in Québec, 14 years of age or older) or a court order or agreement states otherwise.
- When managing family disputes involving incapable elder patients, determine who is legally authorized to consent on behalf of the patient.
- When necessary, request legal documentation (e.g. court order, parenting or separation agreement, power of attorney) authorizing an individual to provide consent, and keep a copy in the medical record.
- If consensus cannot be achieved among authorized decision-makers, consider seeking guidance from a hospital ethics committee, the court, or the public guardian or curator.
As in any conflict situation, physicians who consistently communicate in a respectful and professional manner can help mitigate an escalation of tensions, provide care that is in the best interests of the patient, and reduce the possibility of complaints. The CMPA’s physician advisors are available to provide members with individual advice.
- For example, in Québec, family members of a deceased person are entitled to know the cause of death and to access the medical record such as to ascertain whether the deceased had a genetic or hereditary disease. In Alberta, Ontario, New Brunswick, Nova Scotia, Newfoundland and Labrador, Prince Edward Island, Northwest Territories, and Yukon, immediate family members can be provided with information they reasonably require to make decisions about their own health care.