When we talk about consent, it becomes a question which needs clarity: who can give consent? Section 21 to 28 discusses this aspect of consent.
Capacity to Consent:
Section 21 of PHIPA clarifies on this point and says that an individual is said to be capable to give consent with respect to the collection, use or disclosure of personal health information if the individual is able to-
- Understand the relevance of the information with respect to consent
- Appreciate the reasonable foreseeable consequences of giving and not giving, withholding or withdrawing the consent.
This section further clarifies that an individual may be capable of consent with respect to one part (some parts) of the personal information and incapable to consent with respect to other parts. This situation usually arises when the personal health information is different in nature and renders an individual capable of consent in one capacity and incapable in another capacity, obviously this provision appears to be dependent upon the “information”.
This section further classifies this capacity which is based upon time and says that at one time an individual may be capable of consent but at another time he/she may be incapable for the same.
The presumption is in favour of an individual and he/she is considered as capable of consenting to the collection, use, and disclosure of personal health information unless a health custodian has a reasonable ground to believe that an individual is incapable of the same.
Grounds/determination of Incapacity:
A health information custodian who determines the incapacity shall provide to an individual about the consequences of such determination. In case when a health information custodian determines an individual incapable of consenting to the collection, use, disclosure of his/her personal health information, the individual may apply to the Board for a review of such determination unless there is a person who is entitled to act as the substitute decision-maker for that individual.
Generally, the parties to the applications are the individual (applying for the review), health information custodian and all other persons specified by the Board.
Subsequently, the Board may confirm the determination of incapacity and may determine that the individual is capable of consenting. Once the Board confirms on the final disposition then the individual shall not make another application within 6 months after the final disposition of the earlier application.
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