Originally published December 2016
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, custodial parents or legal guardians 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 respectful manner 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 custody and 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 custodial parent, even if that parent has only a right of access. 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 custody disputes
In 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. Unfortunately, physicians often include information provided by that parent without appropriately qualifying the statements and identifying the source of the information, or advocating in an objective manner. 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 dementia, and family members disagree over treatment or other aspects of the patient’s ongoing personal care.
When a court has appointed a legal guardian for the patient, or a substitute decision-maker (SDM) has been officially identified, consent may be provided by the designated SDM. In these cases, the physician can request documentation of the legal authority for the individual to provide consent (e.g. power of attorney, personal directive, or court order), and should keep a copy of this in the medical record.
In the absence of such authority, physicians may face conflicting instructions from different family members in circumstances where legal and emotional factors often collide. Communicating appropriately with the family, and in accordance with their legal rights, is generally the best approach.
Consent to treatment
Provincial and territorial legislation generally sets out a prioritized list of nearest relatives, including the patient’s spouse, parent, or children, who are authorized to give or refuse consent to treatment on behalf of an incapable patient.
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 obtain the help of a hospital ethics committee for guidance (if available), to apply to the court (or administrative body), or to seek intervention from the public guardian.
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 substitute decision-maker has consented, in accordance with a court order or when authorized by legislation.
In instances where the patient is incapable, it is prudent to first verify that the party making the request is authorized to access the information. The legal administrator of the estate of a deceased patient will generally be authorized to access medical information.
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 Québec, there are limitations on the nature of information that family members may access.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, access or custody 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 applying to the court or administrative body.
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.
- 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.