Part 1: Consent

This section of the Guide answers questions about the requirement for informed consent before health care is provided. The difference between informed consent and advance care planning is described. What types of health decision require consent is discussed. Who the health practitioner must turn to get that consent – the patient or the patients SDM is explained. Although this section has some Q and A’s about SDMs, the Section on SDMs provides more detailed answers to specific questions about how to determine who a person’s SDM and the duties of SDMs when making health decision.

Consent – What is the Requirement to get Consent before treatment?

A consent is a decision by a patient or incapable patient’s SDM to accept or refuse a treatment or plan of treatment after the patient or incapable patient’s SDM is provided with the information about their illness and the possible treatment options.  Health practitioners are required to get an informed consent before providing any treatment subject to the emergency exception when treatment may be provided without consent.[1] 

Although the consent is a decision, getting consent involves a number of steps.

The consent must:

1. relate to the treatment.

2. must be informed.

3. must be given voluntarily.

4. must not be obtained through misrepresentation or fraud.[2] 

What does this mean?

Consent cannot be “general” but must be specific to a particular treatment. It is therefore not appropriate to get a consent “to anything that the health practitioner may order” while a patient is in the particular health facility. That is not a valid consent.

The consent must be “informed”. This means that if, before giving it, the patient or SDM must be provided with information about:

  1. the nature of the treatment,
  2. the expected benefits of the treatment,
  3. the material risks of the treatment,
  4. the material side effects of the treatment,
  5. alternative courses of action, and
  6. the likely consequences of not having the treatment.[3] 

The information to be provided is the information that a reasonable person in the same circumstances would require in order to make a decision about the treatment.

The consent is not informed until the patient or incapable patient’s SDM receive responses to any questions or requests for additional information about those matters[4]

The consent must be voluntary and not “required” as a condition of admission into a health facility or of continuing right to receive treatments at that health facility or from that health service. For example, requirements that a person agree to a “no CPR order” as a condition of admission into a long term care home is not a voluntary consent as that requirement would be a breach of the Long Term Care Homes Act.

The consent must not be obtained through misrepresentation or fraud. This means that patients cannot be told that the treatment is for one particular health condition when it is for another about which they are not told. Health practitioner may not tell a patient that there are no risks to a treatment when in fact there are risks that a reasonable person would want to know about before making a decision about that treatment.  

  • [1] Health Care Consent Act , s.10(1)
  • [2] Health Care Consent Act , s.11
  • [3] Health Care Consent Act , s.11(3)
  • [4] Health Care Consent Act , s.11(2)
Are Health practitioners required to get informed consent before they provide treatments to patients?  

Health practitioners are required to obtain informed consent from any person they treat or from their substitute decision maker (SDM) if the health practitioner is of the opinion that the person being treated is mentally incapable to consent[5], subject to the emergency exception. [6]

Consent always comes from a person, not a document.[7] Consent documents may be completed as evidence that the treatment was discussed and the person provided consent however a consent signed without discussion of the treatment options and the information for an informed consent is not a valid consent. Consent documents are not required by law but may be used by health practitioners and health facilities as part of record keeping.

Consent must come from a person – the person or the incapable person’s SDM- even if the person had expressed advance care planning wishes about health care.   The fact that these wishes are in writing does not change this requirement to get the informed consent from the person or the incapable person’s SDM

A health practitioner may treat a patient without consent in emergencies when a patient is suffering or is at risk of serious bodily harm unless treatment is delivered immediately.[8]  This duty to get an informed consent is a fundamental legal and ethical requirement.

Consent is the agreement by the person or the incapable person’s SDM to receive the treatment after the consent discussion takes place. Consent may be to a treatment or to a plan of treatment. [9]

  • [5] Health Care Consent Act, s. 10 (1)
  • [6] Health Care Consent Act, s. 25(2)
  • [7] Health Care Consent Act, s. 10(1)
  • [8] Health Care Consent Act , s.25(2)
  • [9] Health Care Consent Act,  s.13
Where do you find the law that requires health practitioners to get an informed consent before providing treatment?

The requirement to get an informed consent is in the Health Care Consent Act.[10]

The requirement that health practitioners must get consent before providing treatment, subject to the exception in emergencies, was originally part of the COMMON LAW. Common law is the law that has developed from decisions of the court.[11]

In Ontario, the requirement for an informed consent was codified in statute when the Consent to Treatment Act was proclaimed in effect in 1995. The Consent to Treatment Act was repealed in 1996 and replaced by the Health Care Consent Act in 1996.  

The Health Care Consent Act is now what patients, SDMs and health practitioners need to look at to understand health decision making. This codification of the law on consent made it easier for health practitioners and patients and SDMs to understand this requirement for consent.

When the requirement for consent was codified in a statute, the substitute decision provisions were included to the legislation so that health practitioners and patients would know who would be the decision maker for a patient who became incapable to make their own health decisions.[12] The requirements for consents for decisions about admission into a long term care home [13]and consent for personal assistance services [14]were also included in the legislation because there was no common law about those types of decisions.  

  • [10]The Health Care Consent Act is available on the internet at Elaws Ontario  https://www.ontario.ca/laws/
  • [11]
  • [12] Health Care Consent Act, s. 20(1)
  • [13] Health Care Consent Act, Admission To Care Facilities , Part III
  • [14] Health Care Consent Act, Personal Assistance Services, Part IV
Is consent the same as or different than “shared decision making”?

Consent is a decision from a patient or SDM after being provided with treatment options and advice from a health practitioner. The patient or SDM makes the decisions and the health practitioner doesn’t “decide” for the patient. The health practitioner is the expert in determining options that are clinically appropriate and are offered to the patient or SDM to consider. The health practitioner plays a major role in helping patients and SDMs make health decisions, but in the end, it is the patient or SDM that must make the decision.

Some materials/literature about health decision making refer to “shared decision making”. This term infers that the health practitioner and the patient or SDM jointly make decisions about the health care to be delivered. The term “shared decision making” is not a legal term and is not the legal standard.

This term seems to have been promoted to encourage health practitioners to engage in discussions with patients or SDMs about care and treatment rather than just telling patients or SDMs that the treatment to be provided would be “X” without engaging them in the discussions about the options. It has been used to encourage better communication and acknowledge the important roles in decision making of the patient or their SDM.

Shared decision making does not mean that health practitioners get to provide “consent” on behalf of the patient or make decisions for the patient. Even in shared decision making, the patient or SDM makes the final decision of whether or not to agree (consent) to a treatment or plan of treatment.

Because the term “shared decision making” may be misunderstood and may make it appear that the health practitioner has authority to make decisions on behalf of the patient, it is suggested that that term not be used when describing the Ontario health decision making process.

    Why is consent important in patient-centred care?

    Consent which is a decision by a patient or the incapable patients SDM about the patients’ health care is fundamental to patient centred care.  It is in contrast to former outdated practices of health practitioners deciding FOR the patient what care the patient would receive.

    Health care, however important, is the patient’s choice made after getting the expert advice from the health practitioners.

    This places an important obligation on health practitioners to help patients or their SDMs understand the patient’s illness and options for care so that they are in the                                                                                                                                                                                                                                                                                  best position to make decisions. The fact that consent is required before a health practitioner gives treatment does not diminish the importance of the health practitioner. Consent only works effectively as patient centred care when health practitioners use their expertise when advising patients and SDMs.

    Consent and the consent process (ensuring patients/SDMs understand the patient’s illness and the risks and benefits of treatment options etc.) reflects fairness in the health system. It is at the root of patient centred care.

    Getting consent is important because it’s also the law. Failure to get an informed consent before treatment may result in a court action for damages for harms to the patient or complaints of professional misconduct to Health Regulatory Colleges.

      Are adjustments to a treatment included in the original consent or must the health practitioner get a new consent?

      A health practitioner is entitled to presume that consent to a treatment includes,

      (a) consent to variations or adjustments in the treatment, if the nature, expected benefits, material risks and material side effects of the changed treatment are not significantly different from the nature, expected benefits, material risks and material side effects of the original treatment; and

      (b) consent to the continuation of the same treatment in a different setting, if there is no significant change in the expected benefits, material risks or material side effects of the treatment as a result of the change in the setting in which it is administered. [15] 

      It is important to pay attention to the LIMITS to what is “included” in the consent.

      If the patient’s condition changes and new treatments should be offered, then the original consent comes to an end. If a treatment needs adjusting, such as a minor change in dosage of a drug, the adjustment may be included in the original consent and does not require a new consent if the adjusted dosage does not carry with it new benefits, risks, materials side effects for the patient.

      When a patient moves from one health setting to another, such as a transfer from a long term care home to a hospital, whether for a temporary purpose or longer term reason, the records of their treatments and consents should travel with them or be transferred to the new health facility.  The treatments they previously consented to may continue to be administered by the new health practitioners as long as that is reasonable and there is no significant change in the expected risks, benefits, side effects etc. of the treatment in the new setting.

      Transfers to new health settings usually are done because the patient’s health condition has changed. That transfer warrants a review of the patient’s health condition. It also warrants a review of whether new treatments are required and whether the previous treatments are appropriate in light of the patient’s changes in health. The consent to previous treatments and what is included must be considered in this changed context.  

      • [15] Health Care Consent Act, s.12
      Is there a time limit on a consent decision?  

      There is no specific “time limit” on a consent. However, the consent is valid only when the health condition and health needs of the patient remain the same. If the patient’s condition has changed and new treatments or changes in the original treatment would be reasonable to be offered, then a new consent needs to be obtained.

        Does a consent need to be in writing?

        Consent is the agreement, in words or implied by behaviours,[16] by the patient or SDM for the treatment. It does not need to be in writing. The consent is the result of the discussions about the patient’s illness, care needs, and treatment options that takes place between the health practitioner and the patient/SDM.  The written consent may be requested as confirmation that these discussions took place and what is being consented to but a written consent is not required in the law.

        • [16] Health Care Consent Act, s.11(4)
        If there is a signed consent form in the patient’s chart does that mean consent to the treatment has been obtained?

        Not necessarily. Some health facilities and health practitioners ask patients or SDMs to sign consent forms. There is no problem in asking for a signed consent form however just because a consent form has been signed, it doesn’t mean that consent has been obtained.  

        Unless the health practitioner has explained to the patient or incapable patients SDM the patients illness and care needs and provided information about the treatment options (risks, benefits , side effects , alternatives , and what could happen if patient/SDM refuse the treatment) then consent has not been obtained even if there is a consent form that has been signed.

          May consent to a treatment be implied by the actions of the patient?

          Consent to treatment may be express[17] – stated explicitly – or may be implied from the actions and behaviours of the patient. On a practical basis, it is preferable to get an express consent wherever possible so that there is no misunderstanding that consent to treatment was obtained

          • [17] Health Care Consent Act, s.11(4)
          If a change in medication dosage is required after consent is obtained for a treatment, does the health practitioner need to get a new consent from the patient or incapable patient’s SDM?

          Whether a new consent is required depends on many factors. For example has the patient’s condition changed so that different treatment options should be considered or would a new dosage of medication previously consented to have different risks for that patient?

          Unless it is not reasonable to do so in the circumstances, a health practitioner is entitled to presume that consent to a treatment includes:

          a) consent to variations or adjustments in the treatment, if the nature, expected        benefits, material risks and material side effects of the changed treatment are not significantly different from the nature, expected benefits, material risks and material side effects of the original treatment; and

          b) consent to the continuation of the same treatment in a different setting, if there is no significant change in the expected benefits, material risks or material side effects of the treatment as a result of the change in the setting in which it is administered.[18]

          Therefore a change in dosage of a medication consented to may be included in the original consent if the risks, benefits, side effects of taking that new dosage are not significantly different than with the original dosage prescribed.  

          • [18] Health Care Consent Act, s.12
          May other health practitioners help the health practitioner obtain the consent?

          Health practitioners may delegate the task of getting the consent from the patient to another health practitioner but the health practitioner “offering” the treatment still remains responsible for the consent being obtained.[19] The legislation refers to the most responsible health practitioner as the health practitioner “offering” the treatment.

          One health practitioner on behalf of the health practitioners that developed a plan of treatment for a patient may get consent to the plan of treatment.[20]

          What is important is that the health practitioner getting the consent to the treatment offered takes the same steps that the health practitioner offering the treatment would have to take to get consent.

          Those steps include:

          1. determining that the patient is capable of providing the consent to the specific treatment [21]
          2. knowing who is the patients SDM if the patient is not capable for treatment decisions[22]
          3. explaining  the treatment (risks, benefits, side effects, alternatives to the treatment and what might happen if treatment refused)[23]
          4. answering any questions that the patient/ SDM may have about the treatment [24] 

          If the health practitioner that has been delegated the task of getting the consent cannot do any of the steps, that health practitioner must get the original health practitioner who is “offering” the treatment or another health practitioner involved to do the step. For example, if the health practitioner delegated to get the consent cannot explain the treatments offered or can’t answer the questions posed by the patient then that health practitioner must get the information and the answers or involve the original health practitioner since that person is ultimately responsible for the delegated task.  .

          • [19] Health Care Consent Act, s.10
          • [20] Health Care Consent Act, s.13(c)
          • [21] Health Care Consent Act, s.10(1) (b)
          • [22] Health Care Consent Act, s.10(1)(b) and s. 20
          • [23] Health Care Consent Act, s.11(2)and (3)
          • [24] Health Care Consent Act, s.11(2)(b)
          What is a Plan of Treatment and who may get consent to a Plan of Treatment?

           A “plan of treatment” means a plan for care of a patient that,

          • is developed by one or more health practitioners,
          • deals with one or more of the health problems that a patient has and may, in addition, deal with one or more of the health problems that the patient is likely to have in the future given the patient’s current health condition, and
          • provides for the administration to the patient of various treatments or courses of treatment and may, in addition, provide for the withholding or withdrawal of treatment in light of the patient’s current health condition.[25]

          If a plan of treatment is to be proposed for a patient, one health practitioner may, on behalf of all the health practitioners involved in the plan of treatment,

          • propose the plan of treatment;
          • determine the person’s capacity with respect to the treatments referred to in the plan of treatment; and
          • obtain a consent or refusal of consent from the patient for those treatments in the plan that the patient is capable to consent to and from the patient’s substitute decision-maker, for the treatments for which the patient is incapable [26]

          A plan of treatment may be important in the context of end-of-life, as it provides an opportunity for either the capable patient, or if incapable, the SDM, to consent to treatment taking place in the future – including the withholding or withdrawal of treatment in light of the person’s current condition. This is not an “advance consent“ because the patient or SDM does have the information necessary to make an informed decision – knowledge of the patient’s present condition , the treatment options and the risks, benefits, side effects,, alternatives to the treatment and what may happen in the treatment is refused .

          • [25] Health Care Consent Act, s.13
          • [26] Health Care Consent Act, s.13
          What is an Emergency?

          The Health Care Consent Act states that here is an emergency

          “if the person for whom the treatment is proposed is apparently experiencing severe suffering or is at risk, if the treatment is not administered promptly, of sustaining serious bodily harm.” [27]

          • [27] Health Care Consent Act, s.25(1)
          In an emergency, does a health practitioner need to get consent from a CAPABLE patient in order to treat?

          In an emergency, health care providers do not need consent from the CAPABLE patient in order to treat if:

          • the communication required in order for the person to give or refuse consent to the treatment cannot take place because of a language barrier or because the person has a disability that prevents the communication from taking place;
          • steps that are reasonable in the circumstances have been taken to find a practical means of enabling the communication to take place, but no such means has been found;
          • the delay required to find a practical means of enabling the communication to take place will prolong the suffering that the person is apparently experiencing or will put the person at risk of sustaining serious bodily harm; and
          • there is no reason to believe that the person does not want the treatment.[28] 

          Treatment may be continued only for as long as is reasonably necessary to find a practical means of enabling the communication to take place so that the person can give or refuse consent to the continuation of the treatment. 

          • [28] Health Care Consent Act, s. 25(3)
          In an emergency, does a health practitioner need to get consent from an INCAPABLE patient’s SDM in order to treat?

          In an emergency,  health care providers do not need consent from the INCAPABLE  patient in order to treat if  the delay required to obtain a consent or refusal form the incapable patient’s’ SDM will prolong the suffering that the patient is apparently experiencing or will put the person at risk of sustaining serious bodily harm[29]

          Treatment may be continued only for as long as is reasonably necessary to find the incapable person’s substitute decision-maker and to obtain from him or her consent, or refusal of consent, to the continuation of the treatment. [30] 

          If, after a treatment is begun, the health practitioner believes that the person has become capable with respect to the treatment, the person’s own decision to give or refuse consent to the continuation of the treatment must be obtained. [31]

          • [29] Health Care Consent Act, s.25(2)
          • [30] Health Care Consent Act, s.25(6)
          • [31] Health Care Consent Act, s.25(2
          Does a health practitioner need an informed consent to examine a person or do a diagnostic test that would be considered a treatment to determine if an emergency exists?

          An examination or diagnostic procedure that would otherwise be considered a treatment may be conducted by a health practitioner without consent if,

          • the examination or diagnostic procedure is reasonably necessary in order to determine whether there is an emergency; and
          • in the opinion of the health practitioner,
          • the person is incapable with respect to the examination or diagnostic procedure, or
          • the health practitioner believes the person is capable but
          • the communication required in order for the person to give or refuse consent to the treatment cannot take place because of a language barrier or because the person has a disability that prevents the communication from taking place and
          • steps that are reasonable in the circumstances have been taken to find a practical means of enabling the communication to take place, but no such means has been found. [32]
          • [32] Health Care Consent Act, s.25(2
          In an emergency, if a health practitioner knows of the patient’s wishes to refuse a particular treatment may the health practitioner honour that wish and not provide the treatment even if it would be otherwise medically appropriate?

          If a health practitioner knows that a patient, when capable and after turning 16 years of age or older , expressed wishes to refuse a particular treatment, in the emergency , the health practitioner is required to honour that wish and not provide that treatment to the patient even if it would otherwise be medically appropriate.[33] 

          This is included in the Health Care Consent Act to respect the right of a person, when capable, to refuse treatments and to express wishes about future treatment to guide their SDM when the SDM makes substitute decisions for the patient. In an emergency, the health practitioner would not have time to get consent/ refusal of consent from the person themselves or the person’s SDM, therefore the health practitioner can take direction from the patient’s previous capable wish. This is the exception to the rule in consent where the health practitioner would not be able to take directions from wishes but would have to get consent from the capable person or the SDM.

          If the health practitioner is not confident that the patient met this criteria of age and capacity when making that wish to refuse treatment, or is not confident that that wish was the last known capable wish of the patient , then the health practitioner should err on the side of making their own medical judgment as to the appropriate treatment, whatever that is ,  since this is an emergency and  here is no time to investigate probe further about the age  and capacity and wishes of the patient.

          • [33] Health Care Consent Act, s.26
          In an emergency, if an incapable person’s SDM refuses a treatment, are there any circumstances in which the health practitioner can provide that treatment despite the SDMs refusal?

          If consent to a treatment is refused on an incapable person’s behalf by his or her substitute decision-maker, the health practitioner may provide that treatment despite the refusal by the SDM if the health practitioner believes that:

          • there is an emergency; and
          • the substitute decision-maker is not following their duty to make decisions for the incapable by honouring the patient’s previous capable wishes or by acting in the best interests of the patient. [34]

          The SDM’s duty to make decisions by following the principles of substitute decision making is described in s. 21 of the Health Care Consent Act (wishes/best interests) 

          • [34] Health Care Consent Act, s.27
          May a physician put a Do Not Resuscitate Order on a patient’s chart without getting an informed consent to no resuscitation from the patient or the incapable patient’s SDM to that medical order about treatment?

           

          In general, a DNR order should not be put on a patient’s chart unless the health practitioner has obtained an informed consent to No CPR from the patient, if capable, or the incapable patients SDM.

          If a health practitioner believes that CPR should not be offered to a patient considering their health condition, and the patient or SDM disagrees with the physician, the physician may want to consult with their Professional College (College of Physicians and Surgeons) and/ or seek legal advice since the answers to this question may depend on a number of factors and cannot be simply answered in a Q and A.  The College of Physicians and Surgeons has a policy on Planning for and Providing Quality End of Life Care, Policy Number 6-16 last updated May 2016 that sets out their position on this issue.

            Is Code status equivalent to Goals of Care?

            No, Code status is not equivalent to Goals of Care.

            The term “Code status” refers to the type of resuscitation procedures (if any) that the health care team would provide to a patient if the patient’s heart stopped beating and/or the patient stopped breathing.  Code status requires an informed consent from the patient or incapable patient’s SDM. This is the result of a discussion between the patient / incapable patient’s SDM with a physician after the patient/ SDM is informed about the patient’s health condition.

            Code status is decision not a goal.

            The term “Goals of care” describe discussions between a health practitioner and a patient or incapable patient’s SDM the purpose of which is to help the health practitioner prepare for decision-making (consent) discussions by gaining an appreciation of who the patient is, how their values are reflected in the goals he or she has for their care and how these align with both the clinical picture and treatment approaches being considered. More information on Goals of care is in other Q and As.

            Goals of care are not decisions and patients/ SDM do not provide consent to a Goal of care. Goals of care precede and inform the discussion that leads to an informed consent decision.

              Is Code status an Advance care Planning Wish?

              No, Code status is not an Advance Care Planning wish
              .  

              The term “Code status” refers to the type of resuscitation procedures (if any) that the health care team would provide to a patient if the patient’s heart stopped beating and/or the patient stopped breathing.  Code status requires an informed consent from the patient or incapable patient’s SDM. This is the result of a discussion between the patient / incapable patient’s SDM with a physician after the patient/ SDM is informed about the patient’s health condition and treatment options.  

              Code status is a decision made after the appropriate decision maker has all the information to then make a decision. The health practitioner can take direction form the Code status because it is based on an informed consent.

              In contrast advance care planning wishes are “wishes” not decisions. ACP wishes are intended to guide the patient’s future SDM to assist the SDM in making decisions for the patient when the patient becomes incapable.

              When making a wish, the patient is speculating about what they may want or not want depending on their future state of health, The patient does not have all the information to make a decision. The wishes are not directions to the health practitioner because the patient or incapable patient’s SDM has not been given the necessary information about the patient’s current health condition and treatments options to then decide about Code status.

              Even though the treatment (or not) of resuscitation would not be provided until the patient’s heart stops beating or the patient stops breathing at some future date and not at the time that the code status is being discussed, this is not an advance care planning wish. The code status may be included in a plan of treatment for the patient which is based on the patient’s present condition and may include treatments that take place in the future, [35]

              • [35] Health Care Consent Act, s.2(1)
              What is the DNR (c) (DNR Confirmation) form?

              The DNR Confirmation form was created to enable health practitioners to communicate with emergency responders (EMS, ambulance and fire firefighters) when patients/SDMs have provided an informed consent to No CPR to a health practitioner

              By law, emergency responders are required to initiate CPR and related treatments, where appropriate to a patient who needs resuscitation unless they have appropriate confirmation from a medical doctor (M.D.), Registered Nurse (R.N.), Registered Nurse in the Extended Class [R.N. (EC)] or Registered Practical Nurse (R.P.N.) that the patient’s’ current plan of treatment does not include CPR.

              The DNR Confirmation Form, when completed, provides this confirmation and direction to emergency responders with respect to what patient care interventions may or may not be initiated for the patient during the time that they are responsible for patient care. The emergency responders are not required to review or confirm the actual DNR order on the patient’s health care record as the health practitioner signing the Form is responsible to ensure the informed consent to that plan of treatment has been obtained and that it is current.

              The DNR Confirmation form is a particular form available from the Ontario Ministry of Health and Long-Term Care. Each form has a unique identifier number. Emergency responders may take direction to not resuscitate from this form properly if completed by the appropriate health practitioner They cannot take direction from a patient, patient’s family, the incapable patient’s SDM, or from any advance care planning document to not resuscitate because that decision is not within the scope of practice of emergency responders.  

              The patient or the incapable patient’s SDM may rescind the DNR confirmation form at any time although the patient or SDM had previously agreed to no resuscitation and agreed that the DNR (c) form be completed.

              The DNR Confirmation Form is not an Advance Care Plan but is a Confirmation of an Informed Consent to DNR that was obtained by an appropriate regulated health practitioner and permits Emergency responders to not resuscitate if a person has a cardiac arrest or stops breathing while under their care.

              The fact that such a form is completed should NOT affect whether or not a patient is transported by Emergency services to a hospital or other health facility.  

                Who must give the informed consent – the Patient or the Patient’s SDM?

                Consent must be obtained from a person that is mentally capable to provide that consent.[36]  Patients may be young (under 16) or of advanced age and is still their own health decision maker if mentally capable. There is no bottom or top age specified in the legislation as to when a person may start or stop providing their own consent. The only criteria is having mental capacity to make the treatment decision.  The definition of and how to test capacity is discussed in other Q and As.

                If the health practitioner determines that the person is not mentally capable to consent, then the health practitioner must turn to the incapable person’s SDM.  The Health Care Consent Act sets out a hierarchy list of people who are entitled to act as SDM for an incapable person.[37] 

                SDMs are not only people previously named in a Power of attorneys for Personal Care by the now incapable person. SDMs are not always the next of kin or relatives of the person.[38] 

                SDMs get authority to give or refuse consent to treatment for a person ONLY when the person is not mentally capable to make their own decisions. [39]

                • [36] Health Care Consent Act, s.10(1)
                • [37] Health Care Consent Act, s.20
                • [38] Health Care Consent Act, s.20
                • [39] Health Care Consent Act, s.10(1)
                What Age must a patient be to provide his or her own consent to treatment?

                The Health Care Consent Act does not specify a particular age that a patient must be to give or refuse consent to treatment. This means that children do not need to be at least age 16 or 18 to provide their own consents to treatment. This is in contrast to the requirement that a person must be at least age 16 to act as a substitute decision maker for an incapable patient. [40]

                Likewise there is no particular age at which a person loses the right to make their own health decisions.

                What is important is whether the health practitioner is of the opinion that a patient, even if younger than 16 or at any age, even an advanced age, is mentally CAPABLE to provide the consent.

                It should be noted that for a patient to be eligible to consent to Medical Assistance in Dying, that person must be 18. [41]The requirements and process to be followed when providing medical assistance in dying is not in the Health Care Consent Act but is in the Criminal Code section s.241 and following sections.

                • [40] Health Care Consent Act, s.20(2)
                • [41] Criminal Code, s.241.2(1)
                Who are the SDMs that give or refuse consent for an incapable patient?

                The SDMs who can give or refuse consent to treatment for an incapable patient are listed in a hierarchy list in section 20 of the Health Care Consent Act.

                The hierarchy list of SDMs is as follows:

                1. Court ordered Guardian of the Person with authority to consent to treatment
                2. Attorney or Attorneys named in a Power of attorney for Personal Care with authority for treatment ( This is different than the attorney appointed in a Power of Attorney for Property)
                3. Representative (appointed by the Consent and Capacity Board after an application is made to the CCB)
                4. Spouse or partner ( these terms have specific definitions)
                5. Parent with Right of custody or Children’s Aid Society
                6. Parent with right of access
                7. Brothers and sisters
                8. Any other relative (related by blood, marriage or adoption) [42]
                9. Public Guardian and Trustee [43]                                                

                An explanation of each of these terms used in the hierarchy list (spouse, partner, children, relative etc.) is explained in other Q and As. An explanation of how this list works in practice is explained in another Q and A.

                • [42] Health Care Consent Act, s.20(1)
                • [43] Health Care Consent Act, s.20(5)
                What are the requirements to be an SDM to give or refuse consent?

                To be an SDM, a person must meet all these requirements.

                • be capable with respect to the treatment;
                • be at least 16 years old, unless he or she is the incapable person’s parent;
                • not be prohibited by court order or separation agreement from having access to the incapable person or giving or refusing consent on his or her behalf
                • be available; and
                • be willing to assume the responsibility of giving or refusing consent[44] 
                • [44] Health Care Consent Act, s.20(2)
                If a patient has multiple possible SDMs in the hierarchy list at different levels and/ or on the same level that meet the requirements to be an SDM, who is the patient’s SDM to give or refuse consent?

                A patient may have many possible SDMs. A patient may have named someone in a POA Personal Care as well as have a spouse and children and other family. However the incapable patient’s “legal” SDM is the person that is highest ranking in the SDM Hierarchy list in the Health Care Consent Act that meets the requirements to be an SDM. [45]

                If there is more than one person that is entitled to act as SDM that meets the requirements on the same level, there may be multiple SDMs for an incapable patient.

                These equal ranking SDMs may choose to make decisions together or they may decide amongst themselves which of them should act as SDM. [46]

                Health practitioners or health facilities cannot require the multiple equal ranking SDMs to choose a single spokesperson. The equal ranking SDMs may decide that one or more than one of them should act as SDM

                If there is more than one SDM acting, then the SDMs must agree on any treatment decision for the patient. If they can’t come to an agreement then the health practitioner must turn to the Public Guardian and Trustee for the treatment decision.[47] 

                The SDM hierarchy list and how it works will be explained in detail in another Q and A.

                More information on the Public Guardian and Trustee as SDM is explained in another Q and A.

                • [45] Health Care Consent Act, s.20(3)
                • [46] Health Care Consent Act, s.20(1)
                • [47] Health Care Consent Act, s.20(6)
                May Patients delegate the right to give or refuse consent to their treatments to their future SDM or to a family member?

                If the patient is mentally capable, no matter how old or young or frail they may be, he or she is entitled to be their own decision maker.  The SDM has no authority to make decisions for the patient even if the SDM was previously appointed to be the attorney in a Power of Attorney for Personal Care. SDMs only get authority to make decisions for the patient if the patient is incapable for treatment decision making.[48] 

                The capable patient may rely on whomever they wish to assist them in making treatment decisions but they cannot delegate the responsibility of giving or refusing consent to someone else.

                Even if the patient tells the health practitioner to get the consent from the future SDM or the family member, the health practitioner should explain that he or she cannot do that but tell the patient that he or she may get help from the future SDM or family member in making the decisions. The patient can consent to others such as their future SDM and family and friends to get all the same information that the patient would get about the patient’s health condition and treatments so that they can assist and support the patient in this decision-making. This is not a breach of privacy if the patient consents to that sharing of information.[49] 

                • [48] Health Care Consent Act, s.10(1)
                • [49] Personal Health Information Protection Act, 2004, s 23
                May family prevent the Health practitioner from informing the patient about their health condition/ illness and treatments?  

                Although family of some patients may tell the health practitioner that they should not tell the patient about their illness or tell the health practitioner to only talk to them (the family) about treatment options, the health practitioner cannot and should not comply with this request.  The Health practitioner must get an informed consent from the patient before treatment and that requires that the health practitioner inform the patent of their illness and the treatment options. [50]

                If the patient is mentally capable, the patient has the right to know about their illness. The patient is the person that must give or refuse consent to any treatments. Patients may consent to other family also being given all the information about the patient’s illness and the patient may seek help or support from the family in making health decisions but the family cannot block information being given to the capable patient. More information on this issue is discussed in a Q and A about cultural issues.

                The patient may ask the health practitioner not to explain all details about their illness to the patient themselves and the health practitioner may comply with that direction to a limited degree but the health practitioner should help the patient receive enough information about their illness and treatments options to be able to give an informed consent or refusal to the treatments offered since an informed consent or refusal is required.  This can be handled in a sensitive way that is respectful of the patient and their fears or concerns about learning about their illness.

                • [50] Health Care Consent Act, s.10(1)
                May a patient or their SDM refuse consent to a treatment or withdraw consent once given?

                A person or the SDM may refuse consent to the treatment, and if they refuse, the treatment cannot be provided to that person.[51] A refusal to a treatment may be provided by a capable patient or the incapable patient’s SDM even if the treatment that is refused would be life-saving or benefit the patient.

                Consent may be withdrawn at any time,

                • by the patient, if the patient is capable with respect to the treatment at the time of the withdrawal;
                • by the person’s substitute decision-maker, if the person is incapable with respect to the treatment at the time of the withdrawal. [52]

                If a patient or incapable patient’s SDM refuses a treatment or withdraws consent,  it is important to confirm that the patient/ SDM is capable and understands and appreciates the illness and treatment options refused or withdrawn.

                • [51] Health Care Consent Act, s.14
                • [52] Health Care Consent Act, s.14
                How is a “consent” decision different from an advance care planning “wish”?

                An advance care planning “wish” is a statement by a patient, when mentally capable, about care they may want or not want in the future, particularly if they should become incapable.[53] It may be about specific treatments or be general statements about future care but in its most useful form it is guidance by the patient to the patient’s future SDM as to what they should think about when making decisions for the patient if the patient becomes incapable for this purpose.

                Advance care planning wishes are not decisions (consent) because the wishes can range from a thoughtful considered opinion to an off the cuff remark made without much thought.

                A wish is not a decision because the patient may not yet have a full understanding of his or her illness. Also the patient has not been offered a treatment by a health practitioner so they are not yet making an informed decision about particular care options.

                The wishes are messages that the patient wants to communicate to the person or persons that would be that patient’s SDM for health care if the patient becomes mentally incapable to give or refuse consent to the health care being offered. The wishes may help the future SDM understand or have some insight into how the patient thinks about his or her state of health, what’s important to the patient when they think about their health care, and what the patient might consider when making decisions about health care. The wishes may help guide the SDM when the SDM must step into the role of making decisions (consents) about treatments and care for the patient when the patient is incapable to make these decisions for him or herself.  

                • [53] Health Care Consent Act, s.5
                Should patients tell their health practitioners about their advance care planning wishes so that these are known before any treatment decisions need to be made?

                Some people may want to tell their health practitioners their wishes about future health care. However it must be understood that when that person needs treatment, the health practitioner must still get an informed consent from the person or the person’s SDM if the person becomes incapable even if the health practitioner knows the patients capable wishes. [54]

                If the patient wants to make sure that their health practitioners know their wishes that could affect treatment in an emergency, then the patient should inform their health practitioners about these wishes.  If the health practitioner knows of these wishes, the health practitioner is required to honour the wishes in an emergency.[55] 

                Informing the health practitioners about wishes that could apply in emergencies may be very helpful in that it may alert the health practitioner to the fact that the patient may not understand their illness and may have misconceptions about what’s possible or not possible for their health care.

                This may also alert the health practitioner to discuss with the patient about whether the health practitioner can get an informed consent from the patient to some treatments that are relevant to the patient’s present condition although the actual treatment delivery would be in the future. For example, patients or SDMs may consent to no CPR if the patient’s present health condition is such that CPR is not a good option or that the health practitioner would not offer CPR as a treatment to that particular patient.

                This is not “advance consent” but is an “informed consent” as it relates to the patient’s present health condition. As such, the patient can be informed about the risks, benefits, side effects, alternatives to this treatment and what would happen if they refuse CPR. The patient or SDM has all the information relevant to making a decision and can make a decision (consent)  

                If the patient when capable was able to provide an informed consent about a treatment, and nothing has changed in the patient’s condition or treatment options that would require a new consent to treatment, then the health practitioner may provide that treatment without getting another consent from the patient’s SDM.

                • [54] Health Care Consent Act, s.10(1)
                • [55] Health Care Consent Act, s.26
                Why must a health practitioner get consent from a patient’s SDM when the health practitioner knows the patients previous capable wishes about health care?

                The Ontario law requires that health care consent must always come from a person – the patient or the incapable patients SDM even if the health practitioner knows of the patients previous wishes about future health care. [56]This law is intended to protect both the patient and the health practitioner as it means that that treatment is provided only after an informed discussion (subject to the emergency exception)

                Patients may also change their wishes as their health condition changes. This is not unusual therefore the health practitioner may not know the patient’s most current capable wishes. This is also a reason why health practitioners must get the consent from a capable patient or the incapable patient’s SDM despite knowing patient’s previous wishes.

                Patients should not be concerned about the fact that health practitioners need to get consent from the incapable patients SDM rather than taking direction directly from their “wishes” because the SDM is required to make decisions by following the patient’s wishes.

                If the SDM doesn’t make decisions for the patient following the patient’s previous capable wishes, the health practitioner may advocate for the incapable patient and ask the Consent and Capacity Board (CCB) to review the SDMs decisions for the incapable patient.[57] If the CCB decides that the SDM is not following the patient’s previous wishes that apply to the decision to be made, the CCB may order the SDM to follow that wish.[58] 

                If the SDM refuses or does not follow the direction of the CCB in the time that was included in the order, the CCB may remove the authority of the SDM to make decisions for the incapable patient.[59]  This application to the CCB (Form G) is explained in another Q and A.

                It is important that patients tell their wishes about health care to their future SDMs as the SDMs will make decisions for the patients if the patients become incapable.[60]  Patients may also tell their health practitioners about their wishes so that the health practitioner may act as a check on the SDM’s decision making and remind the SDM of the patient’s wishes when the SDM must decide for the incapable patient.

                • [56] Health Care Consent Act, s.10(1)
                • [57] Health Care Consent Act, s.37
                • [58] Health Care Consent Act, s.37(4)
                • [59] Health Care Consent Act, s.37(6)
                • [60] Health Care Consent Act, s.21(1)
                How is consent different from Goals of Care (GOC)?

                Goals of care involve a discussion and are not decisions (consents) about treatments.
                A GOC discussion lays the foundation for, is a precursor to and is distinct from discussions during which specific decisions are made.

                The purpose of the GOC discussion is to help the health practitioner prepare for decision-making (consent) discussions by gaining an appreciation of who the patient is, how their values are reflected in the goals he or she has for their care and how these align with both the clinical picture and treatment approaches being considered.

                This discussion may include an exploration of the person's past experiences, hopes, values, priorities, perception of quality of life and what he or she considers important. The health practitioner clarifies how the person would define and describe the goals he or she has for their care (i.e. being able to do or experience something) as well as the meaning and role for these goals. Examples of GOC are: seeing the birth of a grandchild, maintaining independence or climbing a flight of stairs.

                Approached in this way, the GOC discussion may illuminate misinformation and misunderstandings as well as any GOC that are incongruent or even incompatible with the clinical picture as it is understood by the health practitioner. For these patients, additional time and multiple interactions are likely necessary to adequately meet information needs and address the broad range of emotional responses that can occur.

                Goals of care are not decisions (consents). Goals of care are not DNR or other end of life care. Discussions of goals of care help patients and SDMs make decisions but are not decisions (consents) in and of themselves. The term “goals of care” is also not a legal term and is not defined in the Health Care Consent Act. GOC discussion may be very valuable and lead to better health decision making and consent / refusal of consent which is the required legal outcome.[61] 

                Goals of care are also discussed in other Q and As.

                • [61] Health Care Consent Act, s.10(1)
                What are health decisions that require consent?

                In the Health Care Consent Act, there are three types of health decisions

                • decisions about treatment, [62]
                • decisions about admission to a care facility (i.e. long-term care home)[63] and
                • decisions about personal assistance services.[64]

                Consent is required to be obtained from a capable person or the incapable person SDM before treatment is provided[65] or admission to a care facility is done, subject to the emergency exception.[66] Consent may be provided by an SDM on behalf of an incapable person to a personal assistance service.[67] 

                Each of these terms – treatment, admission to a care facility and personal assistance services – are explained in other Q and As.

                • [62] Health Care Consent Act, Part II ,Treatment
                • [63] Health Care Consent Act Part III,  Admission to Care Facilities
                • [64] Health Care Consent Act, Part IV, Personal Assistance Services
                • [65] Health Care Consent Act, s.10(1)
                • [66] Long Term Care Homes Act, 2007, s 44(11)
                • [67] Health Care Consent Act, s.57
                What are treatment decisions?

                Treatment[68] means anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other health-related purpose.  Treatment includes a plan of treatment, a course of treatment and a community treatment plan.

                Treatment can involve major surgery or may be minor care. Treatment includes medication that is prescribed. Treatment is very broadly defined to capture most of the services provided directly or under the supervision of any regulated health professional.  

                Treatment does not include:

                (a) the assessment of a person’s capacity with respect to a treatment, admission to a care facility or a personal assistance service, the assessment of a person’s capacity to manage property or a person’s capacity for personal care, or the assessment of a person’s capacity for any other purpose,

                (b) the assessment or examination of a person to determine the general nature of the person’s condition,

                (c) the taking of a person’s health history,

                (d) the communication of an assessment or diagnosis,

                (e) the admission of a person to a hospital or other facility,

                (f) a personal assistance service,

                (g) a treatment that in the circumstances poses little or no risk of harm to the person.[69]

                A “plan of treatment “is a plan for care that,

                • is developed by one or more health practitioners,
                • deals with one or more of the health problems that a person has
                • may deal with one or more of the health problems that the person is likely to have in the future given the person’s current health condition,
                • provides for the administration to the person of various treatments or courses of treatment and
                • may provide for the withholding or withdrawal of treatment in light of the person’s current health condition.[70]

                One health practitioner on behalf of all the health practitioners that helped developed the plan of treatment may get consent from the patient or the incapable patients SDM to the plan of treatment.  

                A key point to understand is that a plan of treatment is developed in reference to the patient’s CURRENT health condition and will need to be changed as the patient’s condition changes and a new consent may need to be obtained if the risks and benefits of the new plan are different from the original plan.

                • [68] Health Care Consent Act, s.2 (1)
                • [69] Health Care Consent Act, s.2(1)
                • [70] Health Care Consent Act, s.13
                What are decisions about admission into a care facility?

                Decisions about “admission into a care facility” apply only to decisions about moving into a long term care home as regulated by the Long Term Care Homes Act and not to moving into other accommodation that might also provide care services.[71] 

                The word “care facility” is defined in the Health Care Consent Act as a long term care home or any other type of facility as included in the regulations to this act. As of 2018, no other types of facilities have been added as a “care facility” Therefore the HCCA sections about consent to admission to a care facility do not apply to moving into a retirement home tenancy, getting admitted into a hospital, or admission into a psychiatric facility or any other type of care facility.

                If a person is moving into a retirement home or other form of assisted living arrangement, or accommodation where care services are available, that admission or move is not a health decision under the Health Care Consent Act. However the tenants moving into these places must still consent to moving in because these types of housing are tenancies called “care homes” under the Residential Tenancies Act and consent is required to enter into a tenancy agreement.

                • [71] Health Care Consent Act, s.2 (1)
                What are decisions about Personal Assistance Services?

                “Personal assistance services” means assistance with or supervision of hygiene, washing, dressing, grooming, eating, drinking, elimination, ambulation, positioning or any other routine activity of living, and includes a group of personal assistance services or a plan setting out personal assistance services to be provided to a person.[72] 

                This term applies only to these types of services delivered to residents in a long term care home as regulated under the Long Term Care Homes Act and not to people receiving this type of assistance at home or in other health settings.[73] 

                The reason that personal assistance services only to apply to these services in a LTC Home is because the Health Care Consent Act states that personal assistance services are provided to “recipients”. The term “recipient “means a person who is to be provided with one or more personal assistance services,

                (a) in a long-term care home as defined in the Long-Term Care Homes Act, 2007,

                (b) in a place prescribed by the regulations in the circumstances prescribed by the regulations,

                (c) under a program prescribed by the regulations in the circumstances prescribed by the regulations, or

                (d) by a provider prescribed by the regulations in the circumstances prescribed by the regulations; [74]

                As of 2018, no regulation to the Health Care Consent Act exists that describes additional places, programmes, or providers as suggested in (b) (c) or (d) in this definition of recipient.

                • [72] Health Care Consent Act, s.2 (1)
                • [73] Health Care Consent Act, s.2 (1) , Definition of “recipient”
                • [74] Health Care Consent Act, s.2 (1) ,
                Where in the Health Care Consent Act does it specify that 'personal assistance services' applies only in long term care homes and does not apply to home care?

                In section 2(1) of the Health Care Consent Act, “personal assistance service” is defined as follows: 

                “personal assistance service” means assistance with or supervision of hygiene, washing, dressing, grooming, eating, drinking, elimination, ambulation, positioning or any other routine activity of living, and includes a group of personal assistance services or a plan setting out personal assistance services to be provided to a person, but does not include anything prescribed by the regulations as not constituting a personal assistance service; “[75]

                There is nothing in the regulation to the Health Care Consent Act that refers to personal assistance services so it is only necessary to look at the actual Health Care Consent Act to see where this term applies. 

                Section 2(1) of the Health Care Consent Act also includes a definition for the word   "recipient" who is the person RECEIVING the personal assistance services. 

                “Recipient” means a person who is to be provided with one or more personal assistance services,

                (a) in a long-term care home as defined in the Long-Term Care Homes Act, 2007,

                (b) in a place prescribed by the regulations in the circumstances prescribed by the regulations,

                (c) under a program prescribed by the regulations in the circumstances prescribed by the regulations, or

                (d) by a provider prescribed by the regulations in the circumstances prescribed by the regulations”[76]

                There is NO regulation to the Health Care Consent Act at this time that defines additional "places" as in (b), additional "programmes" as in (c) or particular "providers" as in (d) of this definition of recipient. .

                This explains why Personal assistance services sections apply only to personal assistance services delivered in long term care homes. 

                However, this does not mean that health and service providers can just provide personal assistance services without getting consent in other settings. The common law of consent would apply to those other situations. .  Common law is law that exists without a statute. Consent is required to touch another person's body as otherwise it is battery or assault. To provide personal assistance services in any setting consent is required.

                In practice, it’s not often necessary to get a "formal" consent to feed, bathe, reposition someone as people, even if incapable for this decision making, do not resist assistance with these activities of daily living or may temporarily object but may comply when approached again.

                The sections on personal assistance services were included in the legislation to address those situations where a person, when incapable, is very resistant to something like bathing which would then create problems for their own health and lack of bathing could impact on other residents in a long term care home.  If this happens, the staff in the long term care home then may get consent from the person’s SDM.  

                Similarly if the incapable person refused to eat foods necessary to maintain their state of health the staff could seek consent from that resident’s SDM to other means of getting appropriate nutrition to that person by changing the diet, feeding the person's foods in forms that they would eat, and so forth.  

                • [75]  Health Care Consent Act, s.2 (1)
                • [76]  Health Care Consent Act, s.2 (1)
                What types of Health Practitioners are obligated to get consent before providing treatment?

                All health practitioners must get consent to treatment. Health practitioners are anyone who is a member of a College under the Regulated Health Professions Act [77]and anyone who is listed in a regulation to the Health Care Consent Act as being a “health practitioner”. At this time (2018) here is no regulation that has added any type of person to be a health practitioner other than the professionals who are members of health colleges.  

                Health Practitioners are anyone who is a member of any of the following Health Professions:

                Health Profession Acts

                Health Profession

                Audiology and Speech-Language Pathology Act, 1991

                Audiology and Speech-Language Pathology

                Chiropody Act, 1991

                Chiropody

                Chiropractic Act, 1991

                Chiropractic

                Dental Hygiene Act, 1991

                Dental Hygiene

                Dental Technology Act, 1991

                Dental Technology

                Dentistry Act, 1991

                Dentistry

                Denturism Act, 1991

                Denturism

                Dietetics Act, 1991

                Dietetics

                Homeopathy Act, 2007

                Homeopathy

                Kinesiology Act, 2007

                Kinesiology

                Massage Therapy Act, 1991

                Massage Therapy

                Medical Laboratory Technology Act, 1991

                Medical Laboratory Technology

                Medical Radiation Technology Act, 1991

                Medical Radiation Technology

                Medicine Act, 1991

                Medicine

                Midwifery Act, 1991

                Midwifery

                Naturopathy Act, 2007

                Naturopathy

                Nursing Act, 1991

                Nursing

                Occupational Therapy Act, 1991

                Occupational Therapy

                Opticianry Act, 1991

                Opticianry

                Optometry Act, 1991

                Optometry

                Pharmacy Act, 1991

                Pharmacy

                Physiotherapy Act, 1991

                Physiotherapy

                Psychology Act, 1991

                Psychology

                Psychotherapy Act, 2007

                Psychotherapy

                Respiratory Therapy Act, 1991

                Respiratory Therapy

                Traditional Chinese Medicine Act, 2006

                Traditional Chinese Medicine

                • [77]  Health Care Consent Act, s.2 (1)
                What are the steps that Health Practitioners are required to follow to get Consent to treatment?

                Health practitioners are responsible to:

                • Determine who is the health decision maker – the patient or the SDM [78]
                • Give the patient rights information if the health practitioner is of the opinion that patient is incapable[79]
                • Help the patient /SDM understand the patients illness
                • Discuss Goals of Care
                • Help patient/SDM understand information about the treatment options (risks, benefits, side effects, alternatives, and what happens if refuse treatment s offered- elements of an informed consent) [80]
                • Explain to the SDM their requirement to make decisions following wishes/best interests of patient [81]
                • Get the informed consent/ refusal [82]

                Each of these responsibilities is explained in separate Q and As.

                This is an example of a possible diagram that can be included in the manual but I need guidance of whether this is something worth adding as then Ill draft some. I have a few from existing PPTs

                Another alterative is that I can provide this in a text box format – so like a quick check list . The above is in PPT but the box style is often seen in articles and texts.

                 

                • [78] Health Care Consent Act, s.10 (1)
                • [79] Health Care Consent Act, s.17)
                • [80] Health Care Consent Act, s.11
                • [81] M. (A.) v. Benes, 1999 CanLII 3807 (ON CA) and Health Care Consent Act s10(1)(b)
                • [82] Health Care Consent Act, s.10(1)
                If a patient must be capable to provide consent, what does capacity mean?

                 

                Capacity is a legal definition. When a health practitioner assesses the capacity of a patient for treatment, he or she must use this legal definition when determining if the patient is capable or not for this purpose.

                The legal definition of capacity is in s. 4 of the Health Care Consent Act. 

                4 (1) A person is capable with respect to a treatment, admission to a care facility or a personal assistance service if the person is able to understand the information that is relevant to making a decision about the treatment, admission or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.[83] 

                The two major elements of capacity are the ABILITY of the person to UNDERSTAND information relevant to making the decision and the ABILITY of the person to
                APPRECIATE the reasonably foreseeable consequences of the decision or lack of decision.

                Capacity is not global but is specific to the decision to be made.[84] A person may be incapable to manage property but be capable to make treatment decisions. A person may be capable for some treatment decisions and not be capable for others.

                Capacity may fluctuate. A person could be incapable for treatment at one stage in an illness and then become capable again for decision making.[85] 

                Decision making capacity is not a diagnosis.  Decision making capacity is not the score on the MMSE (Mini Mental Status examination), or the ACE (Aid to Capacity evaluation) or the MoCA (Montreal Cognitive Assessment test or any other although those tools may be used by clinicians in doing a clinical examination and assessing cognitive impairment  

                There is a presumption of capacity[86]. A health practitioner may presume that a person is capable of giving or refusing consent unless the health practitioner has reasonable grounds to believe that the person is incapable. The presumption of capacity does not remove the responsibility of the health practitioner to determine if the person is capable or not before getting consent to a treatment from that person.[87] 

                • [83] Health Care Consent Act, s.4
                • [84] Health Care Consent Act, s.15(1)
                • [85] Health Care Consent Act, s15(2)
                • [86] Health Care Consent Act ,s 4(2)
                • [87] Health Care Consent Act, s 4(3)
                If there is a presumption of capacity why does a health practitioner need to assess the capacity of the patient?

                The presumption of capacity does not remove the responsibility of the health practitioner to turn their minds to whether the patient is capable or not to consent to treatment.

                There is a presumption of capacity with respect to treatment, unless the health practitioner has reasonable grounds to believe that the patient is incapable with respect to the treatment.[88] 

                Health practitioners should not assume that a patient lacks capacity to make a decision solely because of their age, disability, appearance, behaviour, medical condition (including mental illness), their beliefs, their apparent inability to communicate, or the fact that they make a decision that the health practitioner disagrees with.

                Health practitioners should interact with patients presuming they are capable to make decisions about their care, and to decide whether to agree to, or refuse, an examination, investigation or treatment. Health practitioners need to engage in discussions with patients, considering their individual needs, and give them appropriate support and help to give them the opportunity to understand and appreciate the information necessary to give or refuse consent to a treatment.

                If despite this support and help the health practitioner believes that the patient does not have the ability to understand the information being conveyed , cannot retain the information and weigh the options and appreciate the consequences of giving or refusing consent, then the health practitioner has reasonable grounds to conclude that the  patient lacks capacity to consent to the treatment.

                A patient may be capable to make some treatment decisions and not capable to make others. Patients may be capable of understanding and appreciating simple procedures and tests but lack capacity to understand and appreciate the consequence of having surgery or a complex treatment, the consequences of which are not obvious.

                Capacity may also fluctuate depending on the state of health of the patient. For example, if a patient is experiencing a delirium, that patient would not be capable to consent to treatment but post treatment the patient may regain decisional capacity.  

                • [88] Health Care Consent Act, s. 4(2)and (3)
                Who is responsible for determining the patient’s capacity for treatment?

                The health practitioner offering the treatment[89] is required to be of the opinion that the patient is capable to provide consent to the particular treatment before getting consent from that patient and before treating the patient. If the health practitioner does not believe the patient is capable, then the health practitioner must turn to the incapable patient’s SDM.

                The health practitioner is responsible to determine the patient’s capacity to consent to the treatment but is not required to do that assessment him or herself. The health practitioner may rely on the assessment of that patient’s capacity by other health practitioners who the treating health practitioner believes has the knowledge, skill and judgment to do this assessments but if other health practitioners do that assessment, the treating practitioner is still responsible.  

                “Capacity assessors”[90] that are authorized by the Capacity Assessment Office located at the Office of the Public Guardian and Trustee should not be used to assess a patient’s capacity for treatment. Who Capacity Assessors are, when they are used for capacity assessment, and what types of capacity they assess are explained in another Q and A.

                • [89] Health Care Consent Act, s, 10(1)
                • [90]Substitute Decisions Act, Regulation 460/05
                Should formal “Capacity Assessors” be retained to assess the capacity of a patient to consent to treatment?

                People who are authorized to call themselves “Capacity Assessors” [91]by the Capacity Assessment Office located at the Office of the Public Guardian and Trustee should not be used to assess capacity for treatment.  

                The people who have this designation as “Capacity Assessor” are required to do certain types of capacity assessments as specified in the Substitute Decisions Act in respect to property such as an assessment to trigger a Statutory Guardianship.[92] . Capacity assessors may do other assessments about property and personal care decision making such as an assessment to bring into effect a POA Property if the POA Property document requires that an assessment of incapacity be done and the document doesn’t specify who should do the assessment.[93] Capacity Assessors may also give opinions about property and personal care capacity for use in court applications or in settlement discussions. Opinions about capacity do not stand alone as conclusive of incapacity but are used as evidence. All the types of capacity assessments that Capacity Assessors do are explained in another Q and A/

                There is no reference to Capacity Assessors in the Health Care Consent Act. The term “assessor” which refers to these Capacity Assessors is defined in Regulation 460/05 to the Substitute Decisions Act.

                The Health Care Consent Act does specifically state that the Health Practitioner offering the treatment has the responsibility to determine the capacity of the patient before providing the treatment.[94]

                As the health practitioner may delegate the assessment of capacity for treatment to another health practitioner, technically the health practitioner could hire a capacity assessor who is a health practitioner to do this assessment and provide an opinion however if the health practitioner did this, the health practitioner would be personally responsible for the fees of the capacity assessor so retained and the patient or their SDM could not be billed for that expense.  The Health practitioner would also be accountable for that assessment if the health practitioner relies on it and cannot argue that the capacity assessor is responsible for it.  

                • [91] Substitute Decisions Act, Regulation 460/05
                • [92] Substitute Decisions Act, s.16
                • [93] Substitute Decisions Act, S. 9(3)
                • [94] Health Care Consent Act, s. 10(1)
                May the MMSE or MoCA or other tool be used by health practitioners to assess a patient’s capacity for treatment?

                Capacity for treatment is not the score on any capacity assessment tool such as the Mini Mental Status test, the ACE tool or the MoCA.  These tools are useful clinical tools to be used in diagnosis, to determine treatment options, and to identify the need for social and other supports but are not the test of decisional capacity. The result of the test of decisional capacity is the determination of who is the treatment decision maker – the patient or the incapable patients SDM.

                Capacity is also not a diagnosis. For example, a person who has been diagnosed as having Alzheimer’s disease may still be capable of providing consent to treatment.  Also capacity is not equivalent to mental illness. A person may have a mental illness and yet may be capable of giving or refusing consent to treatment.

                Capacity depends on the treatment and whether a patient has the ability to understand and appreciate the information relevant to that particular treatment. [95] A person may be incapable with respect to some treatments and capable with respect to others. [96]

                A person may be incapable with respect to a treatment at one time and capable at another.  It is possible that a patient could be incapable to consent to a treatment because of their illness but regain capacity when their health condition changes.

                If, after consent to a treatment is given or refused by a patient’s SDM, the health practitioner then believes that the patient is capable with respect to that treatment the patient’s own decision to give or refuse consent to the treatment governs.  When the health practitioner believes that the patient is now capable, that health practitioner should no longer take direction from the patient’s SDM about the treatment provided to the patient.[97]

                • [95] Health Care Consent Act, s. 15(1)
                • [96] Health Care Consent Act .s.15(2)
                • [97] Health Care Consent Act, s. 16 and s.10(1)
                What is the responsibility of health practitioners to provide rights information to a Patient that the health practitioner believes to be incapable to consent to treatment?

                When a health practitioner determines that a patient is incapable to provide consent to a treatment, that health practitioner is required to provide to that patient, found incapable, information as set out in the guidelines established by the governing body of the health practitioner’s profession.[98] This information focuses on the consequences of the finding of incapacity.

                Examples of these guidelines from two health colleges are:

                1. CPSO Policy on Consent to Treatment excerpt [99]

                  Incapable patients
                  If a physician determines that a patient is incapable with respect to a treatment, where possible, the College requires the physician to inform the incapable patient that a substitute decision-maker will assist them in understanding the proposed treatment and will be responsible for making the final decision.

                If the patient disagrees with the finding of incapacity, the College requires physicians to advise the patient that they can apply to the Consent and Capacity Board for a review of the finding of incapacity. Additionally, if the patient disagrees with the involvement of the present substitute decision-maker, the College requires physicians to advise the patient that they can apply to the Consent and Capacity Board to appoint a substitute decision-maker of their choice.  The College advises physicians to take reasonable steps to assist the patient if they express a desire to exercise either of these options

                When appropriate, the College requires physicians to involve the incapable patient, to the extent possible, in discussions with the substitute decision-maker.

                1. CNO Consent Practice Guideline[100]
                  Appendix A: Advocating for Clients

                  Nurses who obtain consent have a professional accountability to be satisfied that the client is capable of giving consent. Also, nurses are professionally accountable for acting as client advocates and for helping clients understand the information relevant to making decisions to the extent permitted by the client’s capacity.

                CNO has developed these guidelines to assist nurses in carrying out their advocacy role as required by legislation.

                1. If the nurse proposing a treatment or evaluating capacity to make an admission or personal assistance service decision determines the client is incapable of making the decision, then the nurse informs the client that a substitute decision-maker will be asked to make the final decision. This is communicated in a way that takes into account the particular circumstances of the client’s condition and the nurse-client relationship.

                2. If there is an indication that the client is uncomfortable with this information, then the nurse explores and clarifies the nature of the client’s discomfort. If it relates to the finding of incapacity, or to the choice of substitute decision-maker, then the nurse informs the client of his/her options to apply to the CCB for a review of the finding of incapacity, and/ or for the appointment of a representative of the client’s choice.

                3.  If there is an indication that the client is uncomfortable with the finding of incapacity when the finding was made by another health care practitioner, then the nurse explores and clarifies the nature of the client’s discomfort. If it relates to the finding of incapacity, or to the choice of substitute decision-maker, then the nurse informs the health care practitioner who made the finding of incapacity and discusses appropriate follow-up.

                4. The nurse uses professional judgment and common sense to determine whether the client is able to understand the information. For example, a young child or a client suffering advanced dementia is not likely to understand the information. It would not be reasonable in these circumstances for the nurse to inform the client that a substitute decision-maker will be asked to make a decision on his/her behalf.

                5. The nurse uses professional judgment to determine the scope of advocacy services to assist the client in exercising his/her options. The nurse documents her/his actions according to CNO’s Documentation, Revised 2008 practice standard and agency policy

                • [98] Health Care Consent Act, s. 17
                • [99] CPSO Consent to Treatment, Policy  Number#3-15 , May 2015
                • [100] College of Nurses Consent Practice Guideline, CNO 2017
                What is the difference between “Rights Information” and “Rights Advice”?

                If the health practitioner decides that the patient is incapable for a particular treatment decision, the health practitioner must provide that person with rights information as specified by their particular professional governing body.[101] This includes information about the patient’s right to apply to the Consent and Capacity Board to ask for a review of that finding of incapacity.

                This is required in all health settings, whether the health practitioner is treating the patient in a hospital, in a long term care home, in a family practice, or in any other setting.

                This is different than the information a “rights adviser”[102] must provide to an individual under the Mental Health Act.  A rights advisor cannot be a person involved in the direct clinical care of the person to whom rights advice is to be given, or a person providing treatment or care and supervision under a community treatment plan.[103]

                The requirement for Rights Advice is in the Mental Health Act and applies only to psychiatric settings.

                Rights advice is a process in which patient’s in psychiatric facilities are informed of their rights when a physician changes the patient’s legal status.

                Rights advice is mandatory in eight situations:[104]

                • a physician's decision that the patient's status must change to involuntary;
                • a physician's decision that the patient's involuntary status must continue;
                • a physician's decision that the patient is incapable to manage his/her property, including finances;
                • a physician's decision that the patient's incapacity to manage his/her property must continue;
                • a physician's decision that the patient is incapable to consent to treatment for a mental disorder
                • a determination that the patient is incapable of consenting to the collection, use or disclosure of personal health information when a twelve to fifteen year old is admitted to a psychiatric facility as an informal patient, and every three months thereafter;
                • before issuing or renewing a Community Treatment Order (CTO), a physician must be satisfied that the person who will be subject to the CTO, and his/her substitute decision-maker (SDM), if any, have consulted with a Rights Adviser and have been advised of their legal rights.

                CTOs are the only circumstance in which rights advice may be provided in the community.

                If a health practitioner determines that a person is incapable to make a treatment decision, is it possible for the person to challenge that finding?

                If a health practitioner determines that a person is incapable to make a treatment decision, that person has the right to apply to the Consent and Capacity Board for a review of that finding. [105]

                There are two exceptions to this rule.

                If the person has a court ordered Guardian of the person and that Guardian has the authority to make treatment decisions for that person, the court had determined that that person was incapable. The person would have to appeal that finding of incapacity to the Superior Court and cannot ask for a review by the Consent and Capacity Board. [106]

                Also if the person, when capable, had completed a special type of Power of attorney[107] for Personal Care that included what is often called a “Ulysses clause”, that stated that the person waived the right to ask for a review of a finding of incapacity and that special POAPC is in effect as defined in the Substitute Decisions Act, then that person cannot ask for a review by the Consent and Capacity Board.

                The Consent and Capacity Board may confirm the health practitioner’s finding of incapacity or may determine that the person is capable with respect to the treatment. If the Consent and Capacity Board determines that the person is capable, the health practitioner must treat that person as capable despite their opinion that the person is incapable until such time there is a change in that persons capacity.

                This review hearing must take place within seven days of the application being started and the decision by the Consent and Capacity Board must be made within one day of the hearing. [108]

                • [105] Health Care Consent Act, s.32
                • [106] Health Care Consent Act, s.32(2)
                • [107] Health Care Consent Act, s.32(2) and Substitute Decisions Act, s.50(1)
                • [108] Health Care Consent Act, s.75(2)(3)
                What happens if the Patient, who has been found incapable for treatment by a Health Practitioner, intends to apply or has applied to the Consent and Capacity Board for a review of the finding of Incapacity?

                If a health practitioner determines that a patient is incapable with respect to a treatment and then, before the treatment is started, the health practitioner is informed that the patient intends to apply, or has applied, to the Consent and Capacity Board for a review of the finding of incapacity, then the health practitioner cannot begin the treatment, and is required to take reasonable steps to ensure that the treatment is not begun until certain things have happened.

                The treatment cannot begin: [109]

                (a) until 48 hours have passed since the health practitioner was first informed of the intended application for review of the finding of incapacity to the Consent and Capacity Board and no application has been started by the patient; OR

                (b) until the patient has withdrawn the application to the Board for this review; OR

                (c) until the Consent and Capacity Board has made a decision of that application and the health practitioner has not been informed that anyone intends to appeal the Board’s decision; OR

                (d) if someone has informed the health practitioner that he or she intends to appeal the Board’s decision, AND

                (i) the period for commencing the appeal has elapsed without an appeal being commenced , or

                (ii) until the appeal of the Board’s decision has been finally disposed of.  

                EMERGENCY EXCEPTION – If there is an emergency, the health practitioner may treat the patient despite the fact the patient has applied to the Consent and Capacity Board for a review of the finding of incapacity or if anything else described in this section is happening. [110] 

                • [109] Health Care Consent Act, s. 18(3)
                • [110] Health Care Consent Act, s. 18(4)
                What happens if the Consent and Capacity Board or a Court makes a finding that a patient is capable for treatment and the Health practitioner is still of the opinion that the patient is incapable for the treatment?

                If the health practitioner is of the opinion that the person is incapable with respect to the treatment, but the person is found to be capable with respect to the treatment by the Consent and Capacity Board (CCB) after an application for review of the health practitioner’s finding, or found capable by a court on an appeal of the Consent and Capacity Board’s decision, the health practitioner must not provide the treatment to the patient unless the patient has given consent. 

                The health practitioner is required to acknowledge the patient’s capacity to decide for the particular treatment that was the subject of the application for the review of incapacity even though the health practitioner may still have questions about the patient’s capacity to consent.

                If the same patient may require a different treatment, with different risks, benefits side effects, the health practitioner’s responsibility to determine if the patient is capable to consent to the new treatment starts again despite the previous finding of capacity by the CCB in respect to the other treatment.

                  Could a health practitioner provide treatment to a patient who has appealed an Order of the Consent and Capacity Board or of a Court that has given authority to an SDM to consent to the treatment on behalf of the patient?

                  Despite the fact an appeal by a patient of a finding of incapacity for treatment is pending, a health practitioner may provide treatment to that patient before the final disposition of the appeal, if the appeal court so orders and the consent is given by the patient’s SDM. 

                  The court may make such an order if it is satisfied,

                  (a) that,

                  (i) the treatment will or is likely to improve substantially the condition of the patient and the patient’s condition will not or is not likely to improve without the treatment, or

                  (ii) the patient’s condition will or is likely to deteriorate substantially, or to deteriorate rapidly, without the treatment, and the treatment will or is likely to prevent the deterioration or to reduce substantially its extent or its rate; and

                  (b) that the benefit the patient is expected to obtain from the treatment outweighs the risk of harm to him or her;

                  (c) that the treatment is the least restrictive and least intrusive treatment that will met these requirements and

                  (d) that the patient’s condition makes it necessary to administer the treatment before the final disposition of the appeal.  [111]

                  • [111] Health Care Consent Act, s, 19
                  Are there limitations on the right of a patient to apply to the Consent and Capacity Board for a review of a finding of incapacity for treatment?

                  There are two circumstances that would prohibit a patient from applying to the Consent and Capacity Board for a review of the finding of incapacity to consent to the treatment. The two circumstances are:

                  • If a patient has been determined by a Court to be mentally incapable for personal care decisions, a Guardian of the Person has been appointed for the patient and the Guardian has authority to give or refuse consent to treatment for the patient. If such a court order appointing a Guardian of the Person has been made it should be on the health record that the court-ordered Guardian of the Person is the patients SDM.[112] 

                  OR

                  • The patient has an Attorney for Personal Care, and that power of attorney document contains a provision waiving the patient’s right to apply for a review of the finding of incapacity and this provision is effective under the Substitute Decisions Act, 1992. [113]This is a special kind of Power of Attorney for Personal Care which is fairly rare. More information on this type of POA for Personal care is described in another Q and A.

                  • [112] Health Care Consent Act, s 32(2)
                  • [113] Substitute Decision Act , s.50
                  What is the requirement for health practitioners to help patients/ SDMs understand the patient’s illness and goals of care?

                  Prior to getting consent to the treatments, the Health practitioner must inform the patient or the incapable patient’s SDM about the patient’s health condition. The illness understanding is the context for the consent or refusal of consent. [114] 

                  Goals of care involve a discussion and are not decisions (consents) about treatments. A GOC discussion lays the foundation for, is a precursor to and is distinct from discussions during which specific decisions are made.

                  The purpose of the GOC discussion is to help the health practitioner prepare for decision-making (consent) discussions by gaining an appreciation of who the patient is, how their values are reflected in the goals he or she has for their care and how these align with both the clinical picture and treatment approaches being considered.

                  This discussion may include an exploration of the person's past experiences, hopes, values, priorities, perception of quality of life and what he or she considers important. The health practitioner clarifies how the person would define and describe the goals he or she has for their care (i.e. being able to do or experience something) as well as the meaning and role for these goals. Examples of GOC are: seeing the birth of a grandchild, maintaining independence or climbing a flight of stairs.

                  Approached in this way, the GOC discussion may illuminate misinformation and misunderstandings as well as any GOC that are incongruent or even incompatible with the clinical picture as it is understood by the health practitioner. For these patients, additional time and multiple interactions are likely necessary to adequately meet information needs and address the broad range of emotional responses that can occur.

                  • [114] Health Care Consent Act, s.11(1) and (2)