Tag: substitute decision-maker
Recently, the Advance Care Planning in Canada initiative, led by the Canadian Hospice Palliative Care Association, released a new resource to assist with advance care planning and choosing a substitute decision maker.
The “Speak Up” initiative includes two complementary resources.
One resource is the “Living Well, Planning Well” legal toolkit. The development of this toolkit was funded by Health Canada. The legal toolkit was designed to be used by lawyers and their clients, to encourage conversations and reflections about clients’ wishes for advance care planning, and putting appropriate arrangements in place.
The other resource is a public toolkit. It provides plain language information regarding the laws and processes with respect to advance care planning and substitute decision-making throughout Canada. This is helpful as the laws can vary between the provinces and territories.
It is very important to consider advance care planning, and to implement plans as early as possible. In particular, everyone should consider executing a power of attorney, to ensure that they are able to select the person responsible for making decisions on their behalf when they are no longer capable. Without a power of attorney, in Ontario, the ultimate decision as to who will make decisions on an incapable person’s behalf (other than those captured by the Health Care Consent Act, 1996), is left to the court. The court takes such matters very seriously, but most people prefer that the choice of substitute decision maker be their own.
Something else to contemplate is speaking with your family and friends, especially with your named attorney, regarding your wishes. As we enter the holiday season, and plan gatherings with our friends and family, consider taking this opportunity to have a conversation in this regard.
You can review Speak Up’s post about the release of their toolkit here.
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Estate planning and planning for the future are sometimes difficult tasks, particularly when it comes to end-of-life planning. When forced to confront their own mortality, many people are hesitant to dive in and make a plan. Unfortunately, this may result in their wishes being unknown if an emergency situation arises.
In Ontario, when a person is incapable of making their own decisions with respect to their care, the Health Care Consent Act (the “HCCA”) and the Substitute Decisions Act (the “SDA”) allow others to make decisions on the incapable person’s behalf. Section 20 of the HCCA sets out a list of persons who may give or refuse consent to treatment on behalf of someone who is incapable to give their own consent at the time. The list of people who may make decisions is as follows:
- The incapable person’s guardian of the person, if the guardian has authority to give or refuse consent to the treatment.
- The incapable person’s attorney for personal care, if the power of attorney confers authority to give or refuse consent to the treatment.
- The incapable person’s representative appointed by the Board under section 33, if the representative has authority to give or refuse consent to the treatment.
- The incapable person’s spouse or partner.
- A child or parent of the incapable person, or a children’s aid society or other person who is lawfully entitled to give or refuse consent to the treatment in the place of the parent. This paragraph does not include a parent who has only a right of access. If a children’s aid society or other person is lawfully entitled to give or refuse consent to the treatment in the place of the parent, this paragraph does not include the parent.
- A parent of the incapable person who has only a right of access.
- A brother or sister of the incapable person.
- Any other relative of the incapable person.
A person included in this list may give or refuse consent only if no person described in an earlier paragraph is willing or available to do so. The SDA, in turn, deals with Powers of Attorney and Guardians.
If you have not taken the time to think through your wishes with respect to treatment and communicate them to others, it is difficult to know whether your substitute decision maker under the HCCA or SDA will make the choice that you would have made yourself, had you been capable. One way of dealing with this issue is by clearly expressing your wishes, such as with a “living will”. The Ministry of the Attorney General describes a “living will” as an expression that is “sometimes used to refer to a document in which you write down what you want to happen if you become ill and can’t communicate your wishes about treatment…[t]he term ‘advance directive’ is also frequently used to refer to such a document.” The Ministry of the Attorney General also notes that you can include your treatment wishes in a Power of Attorney document to ensure that your attorney is aware of them.
Pursuant to the SDA s. 66(3), guardians of the person and attorneys for personal care have a duty to make decisions on an incapable person’s behalf in accordance with the incapable person’s wishes, if known. The guardian or attorney must also use reasonable diligence to ascertain whether the incapable has set out such wishes. Accordingly, it is important to consider including your wishes in your Power of Attorney for personal care and communicating them to your attorney, to ensure that your wishes are known.
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Since Bell’s “Let’s Talk” Mental Health Awareness Day took place this past Wednesday, I thought today would be a good opportunity to blog about the topic of consenting to treatment.
The Centre for Addiction and Mental Health has reported that 1 in every 5 Canadians, during any particular year, will experience an issue with their mental health. In light of this staggering statistic, it is possible that an individual may suffer from a mental illness that temporarily or permanently prevents him or her from consenting to treatment.
In Ontario, health practitioners are statutorily required pursuant to section 10 of the Health Care Consent Act (“HCCA”) to obtain consent before a proposed treatment can be administered. Consent must be obtained from either a capable patient or a substitute decision maker for the incapable patient. My colleague previously blogged about who qualifies as a substitute decision maker. In accordance with the HCCA, a patient is capable of giving consent if he or she is able to understand the necessary information to make an informed decision about the treatment and the consequence of the decision or lack of decision.
Despite the requirement for consent set out in section 10, section 25(2) of the HCCA allows for the treatment of incapable persons in urgent circumstances, and specifically provides:
Despite section 10, a treatment may be administered without consent to a person who is incapable with respect to the treatment, if, in the opinion of the health practitioner proposing the treatment,
(a) there is an emergency; and
(b) the delay required to obtain a consent or refusal on the person’s behalf will prolong the suffering that the person is apparently experiencing or will put the person at risk of sustaining serious bodily harm.
Although there is some leeway for health practitioners to provide treatment to patients in urgent need of treatment without the consent of the patient or their substitute decision maker, it is nonetheless important to ensure that if you or someone you know suffers from a mental health issue that powers of attorney are in order to avoid delays when decisions need to be made about treatment.
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Section 10 of Ontario’s Health Care Consent Act 1996 (“the Act”) states that a health practitioner shall not administer a treatment for a person unless the person has given consent (if capable with respect to the treatment) or if the person’s substitute decision maker has given consent on the person’s behalf (if incapable with respect to the treatment). Simple concept at first blush, but a closer examination reveals some complexities, a handful of which we’ll explore below.
What constitutes informed consent?
One of the defining elements of consent to treatment, is that such consent must be “informed”. By framing consent in this way, the Act promotes communication between health practitioners and their patients or clients and encourages patients to exercise their autonomy. According to the Act, a consent to treatment is informed if, before giving it,
a) The person received the information about the treatment that a reasonable person in the same circumstances would require to make a decision and
b) The person received responses to his/her requests for additional information about the treatment.
Information provided by the health practitioner must include the nature of the treatment (diagnosis and recommended treatment), expected benefits, its material risks and side effects, alternative courses of action (if any) and the likely consequences of not having the treatment. If the patient is deemed to be incapable, then the practitioner must identify the substitute decision-maker (s. 20 (1) of the Act sets out a specific hierarchy of individuals/agencies who may give or refuse consent) and go through the same process to obtain consent.
In a tragic case decided in 2009 (upheld on appeal earlier this year) involving catastrophic injury to an infant sustained at birth as a result of an unsuccessful attempt at a forceps-assisted delivery, the trial judge found that the doctor in question failed to obtain informed consent to that procedure. Risks and benefits of the assisted delivery had not been explained to the mother, nor had the option of continuing to push been presented to her for consideration.
What constitutes informed refusal?
Election to forgo the treatment recommended by the practitioner after the disclosure of the relevant information constitutes “informed refusal”. A competent patient may refuse a treatment, even if it is in their best interests to have the treatment administered. The CMA Code of Ethics (2004) states that the practitioner has a responsibility to respect the right of a patient to reject any medical care recommended.
The Act considers refusal of consent to include withdrawal of consent.
When may the requirement for consent to treatment be waived?
Consent from a capable patient may be waived if the situation is deemed by the health practitioner to be an emergency (i.e. the person is experiencing severe suffering or is at risk of sustaining serious bodily harm if the treatment is not administered promptly). Similarly, a treatment may be given without consent to an incapable person if there is an emergency and the delay required to obtain consent/refusal on the person’s behalf will prolong the person’s suffering or will put the person at risk of sustaining serious bodily harm. Interestingly, in an emergency situation, in the event that a substitute decision-maker is present and refuses to consent to treatment and is not acting in accordance with prior known wishes or is not acting in the patient’s best interests, then s. 27 of the Act gives the practitioner the power to administer treatment despite the refusal.
What is the age of consent in Ontario?
Contrary to widespread belief, there is no age of consent in Ontario. Instead, the principles of capacity (to consent to treatment) are applied, as per s. 4 (1) of the Act, i.e. does the person understand the information that is salient to the decision, and do they appreciate the reasonably foreseeable consequences of a decision or a lack of decision. In short, the concept of maturity is used as the yardstick, rather than chronological age. The issue of age of consent has come under the spotlight in recent years as a result of Ontario’s school-based HPV (Human Papillomavirus) immunization program for Grade 8 girls. All of Ontario’s Public Health Units request parental consent before HPV immunization at school-based clinics. That being said, a student who is deemed to be capable with regards to consenting to or refusing the immunization has the right to do so, irrespective of whether their parent signed or did not sign the consent form on their behalf.
In their Consent to Treatment Policy (#4-05), the College of Physicians and Surgeons of Ontario supports this framework by stating that "the capacity to exercise independent judgment for health care decisions varies according to the individual and the complexity of the decision at hand. Physicians must make a determination of capacity to consent for a child just as they would for an adult."
- ‘Health practitioner’ refers to a member of a College under the Regulated Health Professions Act, 1991, a naturopath registered as a drugless therapist under the Drugless Practitioners Act or a member of a category of persons prescribed by the regulations as health practitioners. Examples include (but are not limited to) physicians, dentists, physiotherapists, and nurses.
- As per the HCCA, ‘treatment’ means anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other health-related purpose, and includes a course of treatment, plan of treatment or community treatment plan.