Regulation Matters 2022 - Issue 1, May

Professional Practice Question: What are my Professional Obligations for Obtaining Consent if the Client's Custody is in Question?

As a Registered Dietitian, you have been providing ongoing dietetic care to a young child. The child's parents have divorced and the mother is present at the session. You are not sure of the details of the custody agreement. What should you do?

Dietitians should consider custody issues when a child attends an appointment with a parent, guardian, or alone. Know your obligations under the Health Care Consent Act, 1996 (HCCA). And consider the following guiding principles in situations involving children.

The HCCA and Consent

Under the HCCA, clients must consent to treatment, and the law does not set a minimum age to consent. Dietitians should involve children based on their capacity to consent, not their age. Nevertheless, age and maturity should be taken into account when considering if there are reasonable grounds to assume capacity.

For example, if the client is an infant, it is clear they cannot give informed consent to treatment. In this scenario, the dietitian should consider the age and maturity of child and determine if the child can provide consent for nutrition assessment and treatment. It is the dietitian’s professional responsibility to assess whether the client understands the information relevant to making a decision about the treatment and is able to appreciate the reasonably foreseeable consequences of a decision (or lack of a decision).

A Child’s Capacity

The assessment of capacity must be based on observations about the client rather than presumptions, generalizations or stereotypes about age, diagnosis, and disability. Can the child appreciate and understand the consequences of their decision? If the dietitian determines that the child can make their own decisions, the dietitian will obtain consent directly from the child.

If the child cannot appreciate and understand the information and cannot give informed consent, a dietitian should not proceed if they question the client’s capacity to consent. Consent must then be obtained from a substitute decision-maker. Substitute decision-maker (SDM) priority is outlined under the HCCA (s20)

The HCCA stipulates that substitute decision-makers must always act in the person's best interests on whose behalf they are making decisions. Supporting resources can be found here:

Accompanying Persons – Authority to Consent

If the child is not capable of consenting, the next step may be to discuss if the accompanying person can consent on the child's behalf. For example, can the parent who is present at the session make decisions on the child's behalf, based on the parental custody agreement? If not, the dietitian will need to contact the person who has the authority to consent on the child's behalf. If it is a joint custody agreement, the dietitian should generally seek the consent of both parents.
If the accompanying person reports they have the authority to provide consent, the dietitian can rely on that person's consent unless they have reasonable grounds to be concerned.

If the accompanying person informs the dietitian that they have sole custody and full rights to give consent for healthcare and, if in the dietitian's judgment, there is no reason to doubt the person's assertion of custody and/or the right to consent, the dietitian may rely upon that consent in providing dietetic care. The dietitian's inquiries and the resulting response should be documented in all cases.

Further, under the HCCA, if a treatment is administered to a person with a consent that a health practitioner believes, on reasonable grounds and in good faith, to be sufficient for the Act, the health practitioner is not liable for administering the treatment without consent (s29(1)). 

Generally, as per Ontario family law, in situations where parents are separated or divorced, and custody arrangements have not been clarified, dietitians should be aware that: 
  • Parents with sole custody have full parental rights and can give consent for care. 
  • Parents with access arrangements have the right to receive health information BUT do not have the right to give or withhold consent. 
  • Dietitians should generally have the consent of both parents with joint custody. 
It is important to note that an agreement or court order can amend these rules. Therefore, it is prudent for dietitians to take proactive steps to confirm the legal authority of that parent to make decisions on the care and treatment of the child. Information and resources for dietitians on the topic of consent can be found here: Consent Jurisprudence and Professional Practice Resource page.

Also, please read health lawyer Kate Dewhirst's blog post about joint custodial parents and privacy requests: Feuding Parents and Privacy Requests: what to do when joint custodial parents disagree.

This practice question has been adapted with permission from the College of Physiotherapists of Ontario.

Capacity to Consent

General Guidelines when considering client age/maturity and whether there are reasonable grounds to depart from the presumption of capacity:
  •  Children < 7 often incapable
  • Children between 7 – 12 rarely can consent
  • Children may be unable to understand information (intellectually processing – i.e. benefits, risks, etc.) relevant to making a decision about treatment and cannot appreciate the foreseeable consequences of decisions, or lack of decisions. 
    •  Youth > 12 need to be carefully assessed for capacity