Part 2: Substitute Decision Makers

What is Substitute Decision Making?

Substitute decision making is when one person makes decisions on behalf of another when the other is not mentally capable.

In Ontario, substitute decision making is a fundamental element of the informed consent process when a patient is not mentally capable for health decision-making.  Health practitioners are required to get an informed consent before providing any treatment, subject to the emergency exception, from the patient if capable or from the incapable patient’s Substitute decision maker (SDM).[1] The law specifies who is the patient’s SDM for this purpose. [2]

When a Substitute becomes the decision maker for an incapable patient, that SDM is required to “step into the shoes” of that patient and must try to make decisions for the patient in the same way that the patient would have if still capable.  This is described as the SDM making decisions for the incapable patient following any wishes about future care the patient may have expressed after the age of 16 and when still capable.[3] The last known capable wishes should be followed as the person may have changed their minds about what they wished, particularly as their health changed. [4]

If the SDM doesn’t know of any wishes applicable to the decision to be made, then the SDM is required to act in the “best interests” of the patient.[5] This includes the SDM considering the values and beliefs that the SDM knows that the incapable person held when capable and believes he or she would still act on if capable as well as considering whether the benefit the incapable person is expected to obtain from the treatment outweighs the risk of harm to him or her. More information on how a SDM makes decisions on behalf of the patient is in other Q and As.

  • [1] Health Care Consent Act , s 10(1)
  • [2] Health Care Consent Act, s 20
  • [3] Health Care Consent Act , s 21 (1)
  • [4] Health Care Consent Act, s.5(3)
  • [5] Health Care Consent Act, s21(1) and (2)
What is a Substitute Decision-Maker (SDM)?

A SDM is someone who is entitled by law to make healthcare decisions on behalf of a patient when that patient lacks the capacity to make the decision for him or herself.[6] Health care decisions include decisions about treatment[7], admission into a long term care home[8] and personal assistance services[9] .

All three types of health decisions are explained in other Q and As. Everyone in Ontario has a SDM even if he or she has never prepared a Power of Attorney for Personal Care appointing someone to act in that role. The Health Care Consent Act includes a hierarchy of SDMs[10] that includes

  • family members that get authority to automatically act as SDMs without being appointed,
  • three different types of SDMs that get authority through different types of legal processes (from a court order, from an order made by the Consent and Capacity Board and from a POA Personal Care prepared by a person when capable) , and
  • an SDM of last resort ( the Ontario Public Guardian and Trustee)

This Hierarchy of SDMs is explained in another Q and A A SDM only has authority to make decisions while that patient is and remains incapable of making healthcare decisions. The SDM does NOT get continuing authority to make decisions for the patient after the patient becomes capable even if the SDM has made decisions for the patient during a temporary period of incapacity. However if the patient becomes incapable again for health decisions, then the SDM may act again.  Even if the medical chart or records list who is the SDM for the patient, that SDM  has no authority to act unless the patient is not mentally capable for the particular health decision.

  • [6] Health Care Consent Act. s 20
  • [7] Health Care Consent Act ., Part II Treatment
  • [8] Health Care Consent Act , Part III Admission into Care Facilities
  • [9] Health Care Consent Act , Part IV Personal Assistance Services
  • [10] Health Care Consent Act, s 20
If a person has prepared a POA for Personal Care, naming an Attorney as SDM, does that attorney have any authority to make decisions for the person or any right to have information about that person’s health when the person is still capable for their own health care decisions?

The attorney named in a POA Personal Care does not have the right to make any decisions for the person who created the POA Personal Care when that person is still mentally capable to make their own health care decisions.  The attorney gets the right to make decisions ONLY after the person become incapable.[11]The person when capable may consent to have the health practitioners share information about their health condition and care options with their future SDM (the attorney) but the attorney has no right to this information without that specific consent while the person is capable. [12] 

If the person becomes incapable for health care decision making and the attorney named in the POA Personal Care is that incapable person SDM and meets the requirements to be SDM, the health practitioners are required to share that health information about the person with the attorney who is SDM. [13]

An attorney named in a POA Personal Care has no greater powers or authority than any other SDM in the hierarchy list when they are the SDM for health decision making. 

  • [11] Health Care Consent Act, s.10(1)
  • [12] Personal Health Information Protection Act, 2004, s.21
  • [13] Health Care Consent Act, s.22
What is the difference between a “Substitute Decision Maker”, a patient's “Attorney” named in a Power of Attorney for Personal Care and a patient’s “Next of Kin”, in the context of health care?

A substitute decision-maker is the person(s) who is entitled by law to make health decisions on behalf of an incapable person. It is the general term that applies to all types of SDMs.

“Attorney for personal care”[14] is a type of substitute decision-maker in the Health Care Consent Act SDM hierarchy list, explained in another Q and A.  It is the second highest rankling SDM in that list.

If one or more persons have been appointed as an Attorney for personal care by the patient when capable, they will ‘outrank’ non-appointed family members, whether that attorney is a family member or a friend.  For example, even though a person may have a spouse, he or she may choose to appoint a child as the SDM. In this case, the child appointed as the attorney in a POAPC will act as the SDM rather than the spouse.  

Someone may also choose to appoint a non-family member as an attorney in a Power of Attorney for Personal Care. In this case, that person and not family members will act as the SDM.

“Next of Kin” is not a term used in the Health Care Consent Act and does not appear in the hierarchy list. However all the “automatic” SDMs that may act without the patient having appointed them or without getting authority to act as SDM through a court order or order from the Consent and Capacity Board are all what is commonly thought of as “next of kin”. These are the patient’s spouse, partner, children, parents, brothers and sisters and other relatives. The term “next of kin” is not used in the legislation as it is too vague.  If that term was used, it would not be clear who would be entitled to act as SDM

  • [14] Health Care Consent Act, s 20 and Substitute Decisions Act  s. 46
If a person has never prepared a Power of Attorney when he or she was capable, does that person have a SDM for health care?

A person always has an SDM for health care even if he or she has never prepared a POA Personal Care. Section 21 of the Health Care Consent Act is a hierarchy of SDMs[15]. The person in the incapable person’s life that is highest ranking on this hierarchy and that meets the requirements to be an SDM would be that person’s SDM.

Before a person has one of the three SDMs listed at the top of the hierarchy, someone must DO something to set up any of these. Someone would have to apply to court for a Guardian to be appointed for the incapable person. Someone such as a friend or family member or the incapable person would have to apply to the Consent and Capacity Board for a Representative to exist. The person themselves, when still capable, would have to prepare a POA Personal Care for it to exist. If a person has never prepared a POA Personal Care, and if there is no court order appointing a Guardian for that person and no Order from the Consent and Capacity Board appointing a Representative for that person, then that person’s automatic SDM would be a family member. None of the family would have to do anything to be the SDM for the incapable person other than being that particular type of family member of spouse, partner, child, parent, brother, sister, or other relative.

If a person becomes incapable and has no person in that SDM hierarchy that meets the requirements to be a SDM, then the Public Guardian and Trustee must step in to act as SDM.[16]

Other Q and As explain the SDM hierarchy in more detail.

  • [15] Health Care Consent Act, s. 20(1)
  • [16] Health Care Consent Act, s. 20(5)
Who is the SDM(s) for a patient that is incapable for health decision making?

Every person in Ontario automatically has an SDM for health decisions even if they have not done any planning and have not prepared a Power of Attorney for Personal Care appointing someone to act as their Attorney. For most people, their SDM will be their closest living relative(s) by blood or marriage or adoption.

The Health Care Consent Act includes a hierarchy list that sets out who would be the substitute decision maker for an incapable patient. The person(s) highest on that list who meet the requirements to be a substitute decision maker will be the one who will make decisions on behalf of the incapable patient. The following is the hierarchy of SDMs in the Health Care Consent Act.[17]

  • [17] Health Care Consent Act , s.20
What is an SDM known as a Guardian of the Person?

First on the SDM hierarchy list in the Health Care Consent Act is a “Guardian of the Person”.[18]  This person would be someone who has been appointed by the Superior Court to fulfil this role.[19] 

This person should be able to produce a court order (a document) confirming his or her authority as Guardian of the Person and the scope of that authority.   The court order will detail what types of decisions that that Guardian can make.

Unless the court order limits their authority, a Guardian of the Person, usually has authority to make all “personal care” decisions for the incapable person. These include decisions about shelter (where a person lives), nutrition, hygiene, clothing and safety in addition to health care decisions.[20] The court could limit the scope of the Guardian’s authority if the court determines that the person who is subject of the guardianship either is not incapable for particular types of decisions or the person doesn’t need a Guardian because the care of the person doesn’t require a formal decision maker because their needs are being met by less restrictive means.[21] 

 

The Guardian of the Person is not the same thing as the Guardian for Property of the incapable person or the Statutory Guardian (another type of Property decision maker) of the incapable person. The same person may be appointed by the Court to be Guardian of the Person and Guardian for Property or this same person may be the Statutory Guardian for the Person, but unless a person is the Guardian of the Person, they do not fall into this category of health decision-maker.  

 

  • [18] Health Care Consent Act, s.20
  • [19] Substitute Decision Act, s 55
  • [20] Substitute Decision Act, s 45
  • [21] Substitute Decision Act, s.55(2)
What is an SDM known as an Attorney named in a Power of Attorney for Personal Care

 

Second on the SDM hierarchy list in the Health Care Consent Act is an Attorney named in a Power of Attorney for Personal Care with authority for health decisions.[22]There are two types of powers of attorney, the Power of attorney for property and the Power of attorney for personal care. Only the attorney named in a POA for Personal care has authority to make health decisions for an incapable patient. The patient when capable must appoint the attorney for Personal Care by preparing a Power of attorney document.  A person cannot just tell a health practitioner that they want to name a particular person as an attorney; they must sign a POA Personal Care Document. If a person becomes incapable to prepare a POA Personal Care, no other person can create a POA Personal Care for them.

To prepare a Power of attorney for Personal Care, a person has to be mentally capable for this purpose. He or she must have the ability to understand and appreciate what a POA Personal Care is, have the ability to understand whether the proposed attorney has a genuine concern for their welfare and appreciate that he or she may need to have the proposed attorney make decisions for them.[23]

A person that is an attorney for personal care should be able to produce a Power of Attorney for Personal Care document that has been properly signed and witnessed by two witnesses.[24] 

It is important to read the POA for Personal Care to make sure that the attorney named has the authority to make health decisions. The grantor of the POAPC may have excluded this authority although that is rarely done.  

It must be understood that a person can revoke a POA Personal Care.  Revoking a POA Personal Care means that it comes to an end and is no longer valid. If a person signs a second POA Personal Care, that second (later) POA Personal Care revokes the previous POA Personal Care unless the second POA Personal Care states that the person wants to have multiple POA for personal care.[25] 

Details about what is capacity to prepare a POA Personal Care, who can or can’t be named as an Attorney for personal care and who can and cannot be witnesses to a POA Personal Care are explained in other Q and As.

  • [22] Health Care Consent Act, s.20
  • [23] Substitute Decisions Act , s.47
  • [24]  Substitute Decisions Act , s.48
  • [25] Substitute Decisions Act , s.53
Who can be a witness to a Power of Attorney for Personal Care?

People who are witnesses to a Power of Attorney for Personal Care must be mentally capable.

Certain people cannot be witnesses to the Power of Attorney for Personal Care.

People that cannot be witnesses include the following1. The attorney or the attorney’s spouse or partner.

2. The grantor’s spouse or partner.

3. A child of the grantor (Children include stepchildren who the grantor treats as his or her child)

4. A person whose property is under guardianship or who has a guardian of the person.

5. A person who is less than eighteen years old.[26]

If a person that cannot be a witness has signed as witness, that will void the Power of Attorney for Personal Care document and it will not be in effect.  If it’s not in effect, then the person named as attorney is NOT the attorney for Personal Care.

  • [26]  Substitute Decisions Act , s.48(2) and s. 10(2)
May a person appoint anyone as attorney in a Power of Attorney for Personal Care or are some people prohibited from acting as an attorney?

Certain people cannot be appointed as an attorney even if a person would want to appoint them. The law prohibits certain people from being named as attorneys because of the high potential of conflict of interest. A person cannot name as his or her attorney for personal care anyone

  • that provides health care to the grantor for compensation ( compensation includes OHIP)  or
  • anyone that provides residential, social, training or support services to the grantor for compensation

unless the person is the grantor’s spouse, partner or relative.[27]This would exclude a PSW or nurse or other health provider providing care to the person from acting as his or her attorney unless they were related to the person. This also excludes retirement home and long term care staff and operators from being named as attorney of residents or tenants in those homes.

If a prohibited person has signed as witness or a prohibited person is named as attorney, the POA Personal Care is invalid and does not give any authority to the named attorney.  Health practitioners should turn to the next highest ranking SDM in that person’s life that meets the requirements to be an SDM. More information on Powers of Attorney are in other Q and As.

  • [27] Substitute Decisions Act , s.48(2) and s. 46(2)
If a family member or friend wants to be the SDM for a person who is not capable to make a POAPC to appoint that family member or friend as his or her attorney, what does that family member or friend need to do?

The family member or friend who wants to be an incapable person’s SDM may apply to the Consent and Capacity Board to be named as the incapable person’s Representative.[28] The representative is the third highest ranking SDM in the SDM Hierarchy. The family member or friend may make this application only if the incapable person does not have a court appointed Guardian of the Person or an attorney named in a Power of Attorney for Personal Care. The person applying also must be at least 16 years of age and mentally capable themselves to make treatment decisions.

The incapable person also may make this application to the Consent and Capacity Board to have someone appointed to his or her representative.  

In this order appointing the representative, the Board may give a limited authority or an ongoing authority for health decision-making to the appointed representative. The Consent and Capacity Board may give authority to the representative to give or refuse consent:

(a) to a proposed treatment;

(b) to one or more treatments or kinds of treatment specified by the Consent and Capacity Board, whenever a health practitioner proposing that treatment or a treatment of that kind finds that the person is incapable with respect to it; or

(c) to treatment of any kind, whenever a health practitioner proposing a treatment finds that the person is incapable with respect to it.  [29]

When making this appointment, The Consent and Capacity Board must confirm that

1. The incapable person does not object to the appointment.

2. The representative consents to the appointment, is at least 16 years old and is capable with respect to the treatments or the kinds of treatment for which the appointment is made.

3. The appointment is in the incapable person’s best interests.  [30]

The appointment may have a specific time limit and may have some conditions attached to it. It is therefore important for the named representative to understand the extent of their authority and if there are conditions and time limits. Also health practitioners need to look at the Order from the Consent and Capacity Board appointing the representative when the representative is the SDM.

The Consent and Capacity Board may also terminate a representative appointment if

  • the incapable person or the representative requests the termination of the appointment;
  • the representative is no longer capable with respect to the treatments or the kinds of treatment for which the appointment was made;
  • the appointment is no longer in the incapable person’s best interests; or
  • the incapable person has a guardian of the person who has authority to consent to the treatments or the kinds of treatment for which the appointment was made, or an attorney for personal care under a power of attorney conferring that authority.  [31]
  • [28] Health Care Consent Act, s.33
  • [29] Health Care Consent Act, s.33 (5)
  • [30] Health Care Consent Act, s.33(6)
  • [31] Health Care Consent Act, s.33(8)
What is an SDM known as a Representative appointed by the Consent and Capacity Board?

 

Third on the SDM hierarchy list in the Health Care Consent Act is a person who has applied to the Consent and Capacity Board (CCB) to be named as the patient’s representative. [32] The CCB cannot make such an order appointing a representative unless an application is made.Unlike the Guardian of the Person that may have authority to make a range of personal care decisions for the incapable person in addition to health decisions, a Representative is only given authority to make health decisions for treatment, admission to a long-term care home or personal assistance services in a long-term care home for the incapable person .

The authority of the representative to make health decisions may be

  • to a proposed treatment;
  • to one or more treatments or kinds of treatment set out in the order whenever a health practitioner proposing that treatment or a treatment of that kind finds that the person is incapable with respect to it; or
  • to treatment of any kind, whenever a health practitioner proposing a treatment finds that the person is incapable with respect to it.  [33]

This application may be made by any person, such as a friend or family member of the incapable person,  who is at least 16 years of age and mentally capable with respect to the required decision.  The incapable person may also make this application asking that someone be appointed as their representative.[34]

 

The Board will only consider this appointment if a relevant finding of incapacity has been made and the incapable person does not object.  

  • [32] Health Care Consent Act, s.20 and s.33(2)
  • [33] Health Care Consent Act, s.33(5)
  • [34] Health Care Consent Act, s.33(1)
What is an SDM that is a “Spouse”?

Two persons are “spouses” if they are:  

 

a) Married to each other; or

b) Have lived together in a common law relationship for at least a year orc) are the parents of a child together or d) have together entered into a cohabitation agreement under the Family Law Act  [35] 

 

Spouses may be two persons in a same sex or opposite sex relationship.

Two persons are not spouses if they are living separate and apart as a result of a breakdown of their relationship.[36] They don’t need to divorce to no longer be spouses if they are living separate and apart and both consider their relationship at an end.  

  • [35] Health Care Consent Act, s.20(2)
  • [36] Health Care Consent Act, s.20(8)
What is an SDM that is a “partner”?

 

Two people are “partners” if they have lived together for at least one year and have a close personal relationship that is of primary importance in both person's lives. [37] This could be friends who have lived together for at least one year in a non-sexual relationship and “have a close personal relationship that is of primary importance” in both their lives.  However being just a roommate or housemate with another person does not make them partners This definition was originally put in the legislation in 1992 to recognize same sex partnerships. Since 2004, the same sex partnerships have been recognized as “spouses”.

  • [37] Health Care Consent Act, s.20(9))
Who is an SDM that is a “Child” or a “parent “?

There is no specific definition of “child” or “parent” in the Health Care Consent Act. However the Children’s Law Reform Act sections expanded the definition of child and parent. It is in that act where the relevant definitions of child and parent may be found. [38]

A person is a child of his or her birth parents. A person is also a child of parents as a result of an adoption.The definition of child may include step children if the stepparent helped raise and care for the child when still a minor. The children of people that become spouses later in life when their children are all adults would not be considered in this definition of “child”

However it’s now possible to have children as a result of assisted reproduction or the use of a surrogate, or to have other parenting agreements.  The Children’s Law Reform Act (CLRA) includes new definitions of parent and gives legal recognition of these new parenting arrangements.

The provisions in the CLRA are detailed and the following is not a full explanation of these provisions, however this is intended to be a starting point to alert health practitioners of the expanded definitions of child and parent and to alert people who are children or parents that they may need to explain the relationship to be recognized as children or parents for the purpose of health care decision making.

In addition to children by birth and by adoption, the Children’s Law Reform Act also gives legal recognition or clarification to the following child-parent relationships:

  • Donation of Sperm or Embryo – A person who donates sperm or provides an embryo for assisted reproduction is not a parent of the child by the fact of this donation unless he or she otherwise meets the criteria to be a parent elsewhere in the Children’s Law Reform Act.
  • Birth by a Surrogate – when the child is born to a surrogate that has entered into a surrogacy agreement with the people intended to be the parents in whom she gives up the right to be the parent, the surrogate is not the parent but the other people are the parents.
  • Birth after sexual intercourse but with an agreement in writing for no parentage – If before the child is conceived, the person who provided the sperm and the intended birth parent agree in writing that the person who provided the sperm does not intend to be a parent of the child then that other person is not a parent
  • Spouse of Birth Parent at time of birth of Child – If a person was the birth parent’s spouse (married or common law) at the time of the child’s birth, that person is a parent.
  • Spouse of person that has a child through assisted reproduction or insemination- If a person conceives a child through assisted reproduction or through insemination by a sperm donor has a spouse (married or common law), the spouse is a parent of that child if the spouse had given consent before conception to be a parent.
  • Certification as Parent of a Childs Birth – The person who has certified the child’s birth, as a parent of the child, under the Vital Statistics Act or a similar Act in another jurisdiction in Canada is a parent
  • Court Order – The person who has been found or recognized by a court of competent jurisdiction outside Ontario to be a parent of the child is a parent

 A child may also have up to FOUR parents

  • if the parents entered into a pre-conception parentage agreement in which they all agreed to be parents of the child yet to be conceived.  OR
  • if the child is born as a result of a surrogacy agreement where the surrogate agrees not to be a parent but the others (up to four people) agree to be the parents

The definition of parent for this level in the SDM Hierarchy does not include a parent who only has a right of access.

 

If a Children’s Aid Society or other person is entitled to give or refuse consent in place of the parent, this does not include the parent.

  • [38] Children’s Law Reform Act , s 4 to s.15
Who is an SDM that is “Any other Relative”?

The eighth level on the SDM hierarchy is “any other relative”. People are relatives if they are related by blood, marriage or adoption.[39] 

  • [39] Health Care Consent Act, s.20 (2)
Who is an SDM that is the “Ontario Public Guardian and Trustee (OPGT)”?

If no person meets the requirement to be a SDM, then the Public Guardian and Trustee is the incapable person’s substitute decision-maker. [40] The office of the Public Guardian and Trustee is a government agency under the leadership of a person that holds the position of Public Guardian and Trustee. The division in the office of the Public Guardian and Trustee that steps in to make treatment decisions for incapable people is the Treatment Decisions Unit. Documents that purport to override this default to the Public Guardian and Trustee as a last resort SDM are not appropriate and not legally enforceable. When the OPGT acts as SDM they have the same duties and responsibilities as other SDMs and do provide consent or refusal of consent to treatment after getting the relevant information about the incapable person’s health and the treatment options from the health practitioners,

The OPGT is both the last resort decision maker when a person doesn’t have any other SDM that meets the requirements to be an SDM and is also the SDM if two or more SDMs that are equal ranking (for example two attorneys named in a POAPC or three adult children) meet the requirements to be SDM but they cannot agree on a decision for the person.[41] If there is conflict between two or more equal ranking SDMs, the health practitioner should inform the multiple SDMs that can’t agree that he or she will need to get the decision about the health care for the patient from the OPGT. If after being told this and the multiple SDM still can’t agree or none of them will decide to decline to act (which then breaks the disagreement) then the health practitioner must contact the Treatment Decisions Unit at the OPGT . The contact information for the Treatment Decisions Unit as of January 2018 is as follows:

Treatment Decisions 595 Bay Street, Suite 800, Toronto, ON, M5G 2M6 Tel.: (416) 314-2788 Toll-free: 1-800-387-2127 Fax: (416) 314-2637

Hamilton Office 119 King Street West, 9th Floor, Hamilton, ON, L8P 4Y7 Tel.: (905) 546-8300 Toll-free: 1-800-891-0502 Fax: (905) 546 -8301

London Office 199 Dundas Street, 1st Floor, Suite 100, London, ON, N6A 1G4 Tel.: (519) 660-3140 Toll-free: 1-800-891-0504 Fax: (519) 660 -3148

Ottawa Office 351 Preston St., Suite 200, Ottawa, ON, K1S 2E6 Tel.: (613) 241-1202 Toll-free: 1-800-891-0506 Fax: (613) 241-1567

  • [40] Health Care Consent Act, s.20(5)
  • [41] Health Care Consent Act, s.20(6)
What are the requirements for a person to act as an SDM?

 

The person highest on the SDM hierarchy list in a person’s life is their SDM if they meet ALL the following requirements.

He or she must be:

(a) is capable with respect to the treatment;

(b) is at least 16 years old, unless he or she is the incapable person’s parent;

(c) is not prohibited by court order or separation agreement from having access to the incapable person or giving or refusing consent on his or her behalf;

(d) is available; and

(e) is willing to assume the responsibility of giving or refusing consent.[42]

The meaning of the various requirements is explained in other Q and As.

  • [42] Health Care Consent Act, s.20(2)
What if the health practitioner thinks that the highest ranking SDM is not capable to make treatment decision, who is the SDM for the incapable patient?

If the health practitioner thinks that the highest ranking SDM is not capable to make the treatment decisions, the health practitioner may turn to the next highest ranking SDM to make decisions for the incapable patient.

It is the obligation of the health practitioner to check that the SDM does meet the requirements to be the SDM. This obligation means that the health practitioner must consider whether the SDM is mentally capable to make the treatment decisions.

Unlike the patient who, if found incapable by the health practitioner, has the right to ask for a review of this finding of incapacity by making an application to the Consent and Capacity Board, the SDM found incapable has no right to make a similar application .

If the SDM wants to challenge this finding of incapacity by the health practitioner, he or she would have to apply to the Consent and Capacity Board to be named as Representative (the third highest SDM in the hierarchy) or apply to the Superior Court to be named the Guardian of the incapable person. In both these applications the CCB or the Court would have to consider the ability of the SDM applicant to make treatment decisions. That in part includes looking at whether the SDM is capable of making the treatment decisions that would have to be made for the incapable patient.

    What if the highest ranking SDM is not available by phone or in person or can’t be located and the health practitioner believes that the patient’s health will suffer if no decision is made, who is the SDM for the incapable patient?

    If the highest ranking SDM is not available in a reasonable time[43], relative to the need for a decision about treatment for the incapable patient, the health practitioner may turn to the next highest ranking SDM for the decisions for the patient.

    SDMs don’t need to be at the bedside at all times to be “available”. It is important for SDMs to understand the need to be “available” in some way – in person, by phone, by email, by other means of communication in order to fulfil their role as SDM

    If an SDM plans to be away, for example, on vacation and will not be available to make treatment decisions for the incapable patient, the SDM cannot delegate their decision-making authority to someone else. The health practitioners must go down the SDM hierarchy list to the next SDM to get the decisions for the incapable patient. [44]

    More information about this lack of authority to delegate to another SDM is explained in another Q and A.

    • [43] Health Care Consent Act , s.20(11)
    • [44] Health Care Consent Act , s.20(3)
    What if the SDM is an attorney named in a POA Personal Care and that attorney isn’t willing to act as SDM, who is the SDM for the incapable patient?

    Any SDM may decline to act and tell the health practitioner that they are not “willing” to act as SDM even if named as Attorney in a POA Personal Care. [45]

    The health practitioner should look at whether the POA Personal Care named more than one attorney to act “jointly and severally”. If there are multiple attorneys named in the POA document, the other attorney(s) would be able to still act as SDM.

    Some POA Personal Care documents may include a clause stating that if attorney X is not available/ willing  to act as attorney , then another person is named in that document to act as attorney in their place. This is sometimes called a “waterfall” designation as it names people in a series who would have authority to act when the higher ranked attorney does not want to act as attorney.

    If there is only one named attorney and that attorney does not want to act as SDM for the health decisions, that attorney cannot delegate someone else to act in their place. Only a person, when capable, may name someone to be their attorney in a POA document.  The attorney cannot assign that authority to someone else.

    If that sole attorney does not want to act as SDM for health decisions, then the health practitioner needs to turn to the next highest ranking SDM that meets the requirements to act as SDM and get decisions for the incapable patient from that SDM.  

    • [45] Health Care Consent Act, s.21(2)
    Who determines the capacity of the SDM to make health decisions?

    The health practitioner offering the treatment must consider whether the possible SDM is capable to make the treatment decision that must be made for the incapable patient.[46]  The SDM must pass the same capacity test as a person making a decision for him or herself.If the health practitioner believes that the highest ranking person in the hierarchy is not capable then the health practitioner must turn to the NEXT highest ranking person in the list that meets the requirements to be an SDM.

    If it’s a decision about admission to long term care  the person responsible to determine the capacity of the SDM is the ” person responsible for authorizing admissions to the care facility”.[47] That would be the appropriate case coordinator at the Local Health Integrated Network that is taking the application for admission.

    If it’s a decision about personal assistance services, the person responsible to determine the SDMs capacity is the person providing the personal assistance service to a recipient. That would be a health practitioner at the long term care home. Capacity and capacity assessment is discussed in other Q and As.

    • [46] Health Care Consent Act, s.10(1)
    • [47] Health Care Consent Act, s.40 and Long Term Care Homes Act s.42 and s. 47
    What does the SDM requirement “not prevented by court order or separation agreement from having access to the incapable patient or from giving or refusing consent incapable patient” mean?

      Denial of access orders may be made both in respect to children in family disputes but also to adults when family or others have applied to court to become the Guardian of the Person or the Guardian of Property to that person.  A separation agreement is a document that sets out the terms of separation of married spouses.  A married spouse may include in the separation agreement a statement that he or she does not want his or her former spouse to have any contact, even as a visitor, with him or her should he or she become incapable.

    The separation agreement may also state that the separated spouses do not want each other to be SDMs for health decision making for each other. The Health Care Consent Act makes it clear that two persons that were “spouses” that are living separate and apart as a result of a breakdown of their relationship are no longer spouses for the purposes of substitute decision making therefore stating in a separation agreement that the former spouses do not want each other as SDMs is technically not necessary.  However including that clause in the separation agreement is additional confirmation of this and confirms that both parties have knowledge that they are no longer spouses for the purposes of health decision making. [48]

    • [48] Health Care Consent Act, S.20(8)
    What does the SDM requirement to be “available when decisions for the patient need to be made” mean?

    A person is available if it is possible, within a time that is reasonable in the circumstances, for the health practitioner to communicate with the SDM and obtain a consent or refusal.[49]

    The SDM would meet this requirement if available by telephone or other means of communication. It does not mean that the SDM must be physically present at the bedside.The SDM must be available in a timely way in relation to the needs of the incapable patient to have the decision about the health care made. If the health practitioner cannot make contact with the appropriate SDM and believes that it would be harmful for the patient to delay getting the decision about the treatment, the health practitioner may turn to the next highest ranking SDM that meets the requirements to get the decision for the incapable patient. There is no particular time limit specified in the legislation.

    • [49] Health Care Consent Act, s. 20(11)
    What does the SDM requirement “willing to accept the responsibility of acting as the SDM” mean?

    Any person, even a person that has been named by the patient when capable as the attorney for personal care, may decide that they do not want to take on the role of SDM.

    If the highest ranking person does not want to act, then the health practitioner needs to turn to the next highest ranking SDM that meets these requirements.  

    .

      What happens if the appropriate SDM is not available but is later available after another SDM has made a decision?

      Lack of availability at one time does not mean that the SDM is declining to act for all future decisions.

      The highest ranking SDM that otherwise meets the requirements to act as SDM may not be available in a timely way to provide the substituted decision for the patient for a particular decision or may not want to make a particular decision, then entitling the health practitioner to turn to the next highest ranking SDM for the health decision for the incapable patient.

      However that highest ranking SDM may be available for the next decision that needs to be made. That highest ranking SDM does not lose his or her authority to act as SDM just because he or she was not available at one time or declined at one time in the past  

      It is important for health practitioners to return to that highest ranking SDM for the future decisions for the incapable patient unless that SDM states that he or she does not want to act at all and indicates that he or she wants to decline acting as SDM for the future.  

      The health practitioner or a member of the health team may ask the SDM this question to clarify that both the SDM is aware of the requirements of acting as SDM – in particular being willing to act and being available in accordance with the patient’s needs – and whether the SDM wants to act as SDM or wants to decline this role on an ongoing basis.

      If the SDM states that he or she wants to decline acting as SDM, the health practitioner or team member should confirm that this is being noted in the chart and that the health practitioners will then turn to the next highest ranking SDM that meets the requirements for future decisions.  That then removes the responsibility of checking back with that SDM for future decisions.

      However it should be noted that that SDM who declined to act, and indicated that they understood that the next SDM that meet the requirements would be acting, may change their minds for future decisions and want to be the SDM again and the health practitioners would have to honour that .

      If a person is an SDM he or she needs to understand the need to be available or also must determine if he or she wants to act as SDM on an ongoing basis, If the person who is entitled to be SDM does not want to take on this role then he or she should decline it and make that clear to avoid being contacted over and over again as to whether he or she wants to make a decision for the incapable patient.  

        Who is the SDM if there are multiple people at the same ranking in the hierarchy?

        All people at the same ranking level that meet the 5 requirements to be an SDM are entitled to act as the SDM.  However some of them might not want to act and any individual may decide NOT to act as SDM despite being qualified and highest ranking. . The health practitioner must find out which and how many of the equal ranking qualified SDMs want to act.

        Some examples of multiple equal ranking SDMs:

        • Multiple children
        • Multiple siblings
        • Both parents and children 16 years or older. If a patient has a parent and adult children, the adult children do not get priority over the elderly parent. The elderly parent and the children are all entitled to act as SDMs.
        • Multiple Attorneys named in a POA Personal Care.
        • Multiple other relatives (e.g. Nieces and nephews, cousins etc. if the person had no children or their children don’t meet the requirements to acts as SDM)

        When there are multiple equal ranking SDMs that all want to act as SDM, they must agree on any decisions for the incapable person.[50] 

        If they disagree about whether to give or refuse consent, the health practitioner must turn to the Public Guardian and Trustee for a decision. The health practitioner cannot choose from which of the multiples to take direction.

        If there are three or more multiple equal ranking SDMs they must still all agree. Even if there is a majority of multiple SDMs wanting to consent and a minority refusing consent, the health practitioner must still turn to the Public Guardian and Trustee for a decision.

        When equal ranking multiples disagree, the health practitioner cannot turn to the next highest ranking SDM, The health practitioner must turn to the Public Guardian and Trustee.[51] 

         

        • [50] Health Care Consent Act, s.20(6)
        • [51] Health Care Consent Act, s.20(6)
        Is it necessary for health practitioners to get a copy of a patient’s POA Personal Care if a person claims that they are the attorney in a POA Personal Care for an incapable patient?

        The authority of a person claiming to be an attorney for Personal Care comes from the valid POA Personal Care document. In the Health Care Consent Act, the obligation on the health practitioner is to get the health decisions for an incapable person from the incapable person’s SDM as defined in the law. [52]

        The legislation does not require the health practitioner or health team to see a copy of the POA Personal Care in order to take direction from the person claiming to be the named attorney. The health practitioner and health team may rely on the representation of a person that they are the attorney for personal care until they get information that this is not a true representation.

        Although it’s not required to see the POA Personal care Document, it may be belter practice to do so.

        Why?  A person may think they are the POA Personal Care when in fact they are the attorney in a POA property or the Estate Trustee named in a will.  Attorneys for property of the incapable person and Estate Trustees have no authority to make health decisions for an incapable person.

        Reviewing the actual POA Personal Care document also will bring to the attention of the health practitioner whether here are more than one named attorney and whether the attorneys are permitted to make decisions separately or whether they must act together.  The legal term for separately is “severally” and the legal term for acting together is “jointly”.

        People who are attorneys named in a POA personal care PC should be prepared to show and give a copy of that document to a health practitioner since it is that document that gives them the authority to act.

        • [52] Health Care Consent Act , s.10(1) an s,20(1)(3)
        What happens if one of the multiple equal ranking SDMs tells that health practitioner that the others want him or her to act as the SDM but the health practitioner does not have direct contact with the others?

        Although it’s a good idea to talk to all the equal ranking multiple qualified SDMs to ensure that the health practitioner knows how many of them want to act as SDM, if one of the multiples is contacted and advises the health practitioner that the other equal ranking SDMs would not object to him or her making the decisions without them, the health practitioner may take directions from that SDM if the health practitioner believes that person or has no reason to doubt that representation.  This permission does not apply if the multiples are attorneys named in a POA Personal Care and the POA Personal Care states that the attorneys are to act JOINTLY. This also is the same if two people are joint Guardians of the Person named in a court order or are joint Representatives named in an order from the Consent and Capacity Board. If the POA Personal Care document or Court or tribunal order names multiple SDMs as JOINT decision makers, they must act together. 

        Even if the health practitioner takes direction from the one SDM on the basis of this representation by him or her that the other equally ranked multiples would not object,   if the health practitioner is informed by ANY of those SDMs that were not part of the decision making, that they WANT to be part of the decision making for the patient, then the health practitioner must turn to whomever wants to act, and is entitled and qualified to act.

        If the one SDM misrepresented to the health practitioner that the other equally ranked multiple SDMs would not object to the one SDM acting, the health practitioner is protected from liability if he or she had a good faith belief that the one SDM was telling the truth.

          May multiple equal ranking SDMs decide amongst themselves which one or more of them will act and which one or more of them will be the contact to the health practitioners?

          If there are multiple equally ranked qualified SDMs, they may decide amongst themselves which one of them will act or how many of them will act as SDM.

          It would be reasonable for the healthcare provider to speak with all the SDMs to ensure that this is the group consensus, especially in cases where group conflict is suspected

          Even if one of the multiple equal ranking SDMs declines to act at one point in the incapable patient’s illness as SDM, he or she is entitled to act as SDM again along with the other multiple equally ranked SDMs if he or she wants to at a future date.

            What happens if multiple equally ranked SDMs cannot agree on a health decision for the patient?

            If there are three equal ranking SDMs that want to make the decision, majority does not rule. All three must agree.

            If equally ranked multiple SDMs cannot agree on a decision for the patient, the health practitioner MUST turn to the Public Guardian and Trustee for the decision and the PGT is required to act and cannot decline to act.[53] The Public Guardian and Trustee does not choose between the battling decision-makers but “shall make the decision in their stead.” It is important that health practitioners explain that to multiple equal ranking SDMs BEFORE contacting the OPGT. The health practitioner should try to resolve the conflict to see if the SDMs will agree or if one of more of the multiple SDMs may decide not to act so that there is a consensus amongst the remaining.

            The health practitioner or health team may ask the SDMs that are in disagreement to consider mediation.

            Health practitioners are required to explain to SDMs that the SDMs responsibility is to try to make health care decisions on behalf of the incapable person as that patient, if still capable, would have made the decision him or herself.[54] The SDMs should not be making decisions based on their own values and beliefs. The SDMs are required to make decisions by following the patient’s last capable wishes about health care. If no such wishes are known for the particular decision at hand, the SDMs are required to act in the patients “best interests”.[55] The SDMs should not be making decisions based on their own values and beliefs but should be deciding for the patient by following and applying the incapable patient’s previous capable wishes. If no wishes are known, then the SDM decides what is in the incapable patient’s best interests. Best Interests is legal term and is explained in another Q and A.

            The health practitioner should ensure that all SDMs have an accurate understanding of the person’s current state of health and relevant treatment options. SDMs are entitled to have this information and that is not a breach of privacy.[56] Often conflict in decision-making arises when there is an incomplete or different understanding of the status or expected outcome of different options.

            If mediation is not successful in helping the SDMs achieve consensus, the health practitioners must contact the Treatment Decisions Unit of the Public Guardian and Trustee. The contact information for the treatment decisions unit is currently (January 2018) as follows:

            Treatment Decisions 595 Bay Street, Suite 800, Toronto, ON, M5G 2M6 Tel.: (416) 314-2788 Toll-free: 1-800-387-2127 Fax: (416) 314-2637

            Hamilton Office 119 King Street West, 9th Floor, Hamilton, ON, L8P 4Y7 Tel.: (905) 546-8300 Toll-free: 1-800-891-0502 Fax: (905) 546 -8301

            London Office 199 Dundas Street, 1st Floor, Suite 100, London, ON, N6A 1G4 Tel.: (519) 660-3140 Toll-free: 1-800-891-0504 Fax: (519) 660 -3148

            Ottawa Office 351 Preston St., Suite 200, Ottawa, ON, K1S 2E6 Tel.: (613) 241-1202 Toll-free: 1-800-891-0506 Fax: (613) 241-1567

            • [53] Health Care Consent Act, s.20(6)
            • [54] M. (A.) v. Benes, 1999 CanLII 3807 (ON CA)
            • [55] Health Care Consent Act, s.21
            • [56] Health Care Consent Act, s.22
            What if the SDM doesn’t want to make a decision but still wants to be the SDM?

            Health practitioners should remind the SDM(s) of their role and how substituted decisions are made, by applying previous capable wishes or acting in the best interests of the patient. If the SDM still chooses not to act as the SDM for a particular decision, the health practitioner should explain that a decision must still be made and the health practitioner must turn to the next SDM on the hierarchy list that meets the requirements to make the decision.

            This may be a temporary decision to not make a decision on a particular treatment and the SDM highest on the list may choose to be involved in other future decisions.

            If the SDM choosing not to act is one of multiple at the same level on the list, the other SDM(s) may make the decision without this individual. However, the next time a decision needs to be made, all potential SDM(s) should be asked if they want to be involved unless the SDM states clearly that he or she wants to decline to act as SDM at all. .

              How does an SDM make health decisions for an incapable person?

              In making decisions on behalf of an incapable person, an SDM must:

              •   Follow any applicable WISHES that were expressed by the patient when capable; or
              • If no applicable wishes were expressed when the patient was capable, make decisions in the patient’s BEST INTERESTS

              These are referred to as the “Principles for giving or Refusing Consent” in s.21 of the Health Care Consent Act.

              It is the duty of the Health practitioner or another member of the health team to inform the SDMs of these principles for giving or refusing consent.  This duty was made clear in a court case called M. (A.) v. Benes, 1999 CanLII 3807 (ON CA).

              Before giving or refusing consent to a treatment on an incapable person’s behalf, a substitute decision-maker is entitled to receive from the health practitioner all the information required for an informed consent. This includes all relevant information about the patients’ health condition and the treatment options including information about the risk, benefits of the treatments, alternatives to the treatments and what would happen if a treatment was refused. [57] 

              Providing this information to the appropriate SDM about the incapable patient’s personal health information is not a breach of privacy when the patient is incapable and the SDM must act as decision maker. [58]

              • [57] Health Care Consent Act, s. 22
              • [58] Health Care Consent Act, s. 22(2)
              What are a person’s “prior capable wishes” that an SDM must follow when making health decisions for an incapable person?

              When mentally capable, a person may express wishes[59] with respect to treatment, admission to a care facility or a personal assistance service.  The wishes are not informed consent or refusal to any health care and are not decisions but are important information that will help the person’s SDM make better decisions for the person if the SDM must be the decision maker if the person becomes incapable to make their own health decisions.  

              The wishes are not “advance consent”.  Informed consent always must be obtained before health care is delivered and consent must come from a person – the person or the incapable person’s SDM – after the person or their SDM has all the relevant information about the person’s condition and treatment or health care options.[60] These wishes, a part of what is called advance care planning, are expressed without all this necessary information for an informed consent.  

              The wishes may be expressed in writing in a Power of Attorney for Personal Care or in any other type of written document.  No particular form of document is specified in the Health Care Consent Act. The wishes may also be expressed orally instead of in writing or may be communicated by whatever means the persons uses to communicate with others including through the use of technology or communication tools and aids. [61].

              The wishes may be in respect of specific treatment that the person would not want to have in the future when incapable. The wishes may be about where the person would prefer to live if he or she required a high level of care. The wishes could also be more general expressions as to what factors the person would want their future SDM to consider when the SDM needs to make decisions on behalf of the person.

              The wishes are a key communication between the person and their future SDM since it is the SDM that will be required to make health decisions for the person if the person becomes incapable.  The wishes are not directions to health practitioners because health practitioners must always get informed consent to any health decision, except in emergencies, and cannot take direction from the wishes directly no matter what form the wishes were expressed. [62]Putting wishes in writing doesn’t change who takes directions from them. A person may change their wishes at any time when still capable. Later wishes expressed while capable prevail over earlier wishes.[63] 

              • [59] Health Care Consent Act, s.5
              • [60] Health Care Consent Act, s.10(1) and s.11
              • [61] Health Care Consent Act, s.5
              • [62] Health Care Consent Act, s.10(1)
              • [63] Health Care Consent Act, s.5(3)
              How does the SDM apply the person previous capable wishes when making health decisions for the person?

              The SDM must APPLY the capable wishes of the person, as well as the person’s values and beliefs, when making health decisions for the incapable person. .

              This means that the SDM must determine:

              • whether the wishes of the person were expressed when the person was still capable (and were expressed voluntarily);
              • whether the wishes are the last known capable wishes;
              • what the person meant by that wish;
              • whether the wishes are applicable to the particular decision at hand; [64]

              The SDM doesn’t apply wishes literally but must interpret what the patient meant by the wish, particularly if the wish is a broad statement such as a wish about what quality of life means to the person.

              • [64] Health Care Consent Act, s.20 and s,5
              If a person , when moving into a long term care home, completes that home’s form that asked the new resident to indicate whether they would want transfer to hospital in case of serious illness or would or would  not want CPR , is the SDM bound to make decisions for the resident when incapable as indicated in that form?

              The answer to this question is not straightforward. Just because a form has been signed it may be of little value and not indicative of the resident’s true wishes particularly if it was done at time of admission to the long term care home.  

              When making decisions on behalf of the now incapable resident, the SDM is required to make decisions by honouring the incapable person’s previous capable wishes or by acting in that person best interests if wishes are not known.  This requirement to act in this way is described in more detail in other Q and As.

              However, in honouring wishes, the SDM must determine:

              • If the wishes expressed were voluntary – were these wishes voluntary if the long term care home required the new resident, or led the new resident to believe it was required, to complete that form?
              • If the wishes were expressed when the resident was capable and had the ability to understand and appreciate what they were being asked to sign?
              • What the resident, if capable, understood the statements in the form to mean? For example did the resident not want to be transferred to a hospital if he or she was at end of life and death imminent but did want to be transferred to hospital if he or she needed treatment that was not available at the long term care home and would be returned to the long term care home after that treatment? The form may not state these options but that may be the actual wishes of the resident as explained by the resident to the SDM.
              • Whether the wishes were the last known capable wishes of the resident? Did the resident communicate later wishes to the SDM or others after signing that form?
              • Whether the wishes are applicable to the present decision that the SDM must make for the incapable resident

              The SDM might want to know what the long term care staff explained to the resident when asking him or her to sign that form. How was it explained and what was the resident told about the “consequences” of signing that form?  Did the resident understand or not understand what the form meant? What was the resident told about their own health condition that would be relevant to discussions about no transfers or no CPR?

              The problem with these types of forms is that they are overly broad. These forms are not consents to no transfer or no CPR unless the resident was given full information about their health condition, the treatment and care options and all the information relevant to an informed consent.  On admission, that is likely not done as the information required to consent to no CPR would need to be part of a discussion with a health practitioner likely during a care planning meeting. Discussions about no transfers would require discussions about treatment options at the long term care home and at the hospital for the particular health condition of the resident that might warrant a transfer.

              It also must be remembered that the form is not any type of direction to the staff at the long term care home, except possibly, in an emergency because the long term care  staff and health practitioners must get informed consent at the time a situation arises when decisions need to be made about transfer. That decision comes from the capable resident or the incapable resident’s SDM when they get the current information needed to make a decision. A form about CPR is not consent unless an informed consent was obtained which would involve discussion between the resident or SDM and a health practitioner.

              Even in an emergency, when a health practitioner may honour a wish expressed by the resident when capable if there is no time to get an informed consent, the health practitioner needs to be satisfied that the resident, when capable, was given appropriate information about the consequences of signing of this form and in particular that the wish expressed would be used by the health practitioner in an emergency.  The question is whether the practice of the long term care home staff when asking a new resident to sign such a form gives that confidence to the health practitioner so that he or she can rely on that form.

                What does the SDM do if a wish expressed by the person when capable is now impossible to honour?

                If a wish expressed by the person when capable is impossible to honour, then the SDM does not have to follow it. Instead the SDM must decide what is in the best interests of the person since this wish cannot be followed.[65]  One example of a wish that might be impossible to honour is a wish by the person to remain living in their own home despite their poor health instead of moving to a supported or long term care living environment. There may not be sufficient assistance from home care available from both public and private sources to meet the person’s care needs. The person may not have enough help from family, friends and paid caregivers to remain at home. The person may not have the financial ability to supplement public services to remain at home. Another type of similar wish is the wish to die at home when at end of life. Although this may be what the person thinks they want, depending on their own needs as well as the supports they have from family, friends and health and other services, that wish may be impossible to honour despite best efforts. .

                • [65] Health Care Consent Act, s.21(1)
                What does a SDM need to consider when making a decision in the “best interests” of a person?

                The term “best interests” has a specific definition in the law. This definition helps SDMs understand what they need to consider when acting in the person’s best interests. Health practitioners should use this definition of “best interests” in explaining this principle to SDMs and in discussing options for the incapable patient. .

                The Health Care Consent Act states that to decide what the incapable person’s best interests are, the SDM is required to consider:

                • the values and beliefs that the SDM knows the incapable person held when capable and believes he or she would still act on if capable;
                • any wishes expressed by the incapable person with respect to the treatment that are not required to be followed ( e.g. wishes expressed after becoming incapable; wishes that are impossible to honour but may help the SDM have insight to how the incapable person thought about their own health care etc.)  and
                • the following factors:

                1. Whether the treatment is likely to,

                i. improve the incapable person’s condition or well-being,

                ii. prevent the incapable person’s condition or well-being from deteriorating, or

                iii. reduce the extent to which, or the rate at which, the incapable person’s condition or well-being is likely to deteriorate.

                2. Whether the incapable person’s condition or well-being is likely to improve, remain the same or deteriorate without the treatment.

                3. Whether the benefit the incapable person is expected to obtain from the treatment outweighs the risk of harm to him or her.

                4. Whether a less restrictive or less intrusive treatment would be as beneficial as the treatment that is proposed.  [66]

                • [66] Health Care Consent Act, s.21(2)
                What happens if the health practitioner thinks that the SDM is not making decisions for the incapable person appropriately, such as apparently ignoring the person’s prior capable wishes or not acting in the person’s best interests)?

                 

                If a health practitioner believes that an SDM is not following a patient’s previous capable wishes or is acting against the best interests of the patient, the health practitioner has a number of options.

                1. Does the SDM understand the patient’s illness and treatment options?The health practitioner should ensure that the SDM does understand and has the information about the incapable patient’s illness, health needs and treatment options since it is against that information that the SDM must consider the patients previous wishes and what is in their best interests.
                2. Does the SDM understand their duty to make decisions for the patient following their wishes / acting in their best interests? Did the health practitioner or a team member explain this duty to the SDM? Health practitioners should check with the SDM as to whether they know that they have a duty to make decisions for the incapable patient according to these principles of wishes – best interests.[67] This is a requirement in the law in the Health Care Consent Act, section 21.

                It is the duty of the Health practitioner or another member of the health team to inform the SDMs of these principles for giving or refusing consent.  This duty was made clear in a court case called M. (A.) v. Benes, 1999 CanLII 3807 (ON CA).The health practitioner / health team / health facility may want to consider making available this type of information to SDMs in writing in pamphlet form, in an information sheet or posted on the walls or having videos in waiting rooms or online that explain this to facilitate SDMs learning of this obligation and to help the health practitioner fulfil this duty.

                1. Does the SDM know of wishes of which the health practitioner is not aware and /or does the SDM have a different understanding of the wishes?The health practitioner should explore with the SDM about why they are deciding as they are – what’s their reasoning. It is possible that the SDM knows of changes in the patients previous wishes made by the patient when still capable of which the health practitioner is not aware. [68] Also the SDM may have a different understanding of the patient’s previous wishes than the health practitioner particularly with the SDMs knowledge of the patient’s values and other beliefs that may give more context to the wishes. The SDM may in fact be honouring the patient’s previous wishes.  
                2. Form G Application to the Consent and Capacity Board to determine Compliance with s.21[69] 

                If the health practitioner still believes that the SDM is acting against the patient’s wishes or acting not in the best interests of the patient, the health practitioner does have a formal route that he or she may follow. This was included in the Health Care Consent Act to respect the role of the health practitioner as an advocate for the patient.  The health practitioner may apply to the Consent and Capacity Board (CCB) in what is called a Form G application “application to determine compliance with s. 21” under s. 37 of the Health Care Consent Act.

                Details of the Form G application are described in another Q and A.

                • [67] Health Care Consent Act, s.21
                • [68] Health Care Consent Act, s.5
                • [69] Health Care Consent Act, s.37
                What is the Consent and Capacity Board (CCB) and what do they do?

                The Consent and Capacity Board is an independent tribunal created by the Ontario government under the Health Care Consent Act. It conducts hearings under the Mental Health Act, the Health Care Consent Act, the Personal Health Information Protection Act, the Substitute Decisions Act and the Mandatory Blood Testing Act. Board members are psychiatrists, lawyers and members of the general public appointed by the Lieutenant Governor in Council. The Board sits with one, three, or five members. Hearings are usually recorded in case a transcript is required.The Consent and Capacity Board only has the authority to make decision about an issue if a statute has given them that authority. They do not make decisions about every type of conflict that may arise in health decision making.

                For example, the Consent and Capacity Board cannot settle disputes between two SDMs. The Health Care Consent Act states that if two equally ranking SDMs can’t agree on a decision for the incapable person and both insist on making the decision, then the health practitioner must contact the Public Guardian and Trustee to make the decision in place of the SDMs. They cannot ask the Consent and Capacity to decide which one of them should act as SDM.

                One of the fighting SDMs may apply to the Consent and Capacity Board to be named as the incapable person’s representative if the fighting SDMs were one of the automatic SDMs in the hierarchy list ( for example not two attorneys named in a POAPC) . That application is listed as being in the “jurisdiction” (authority) of the Consent and Capacity Board, The outcome of that application may be that one of the fighting SDMs is named representative , putting that SDM higher on the SDM hierarchy than the other fighting SDM but this is not the same as settling a dispute between the two SDMs.

                The applications that can be made to the Consent and Capacity Board that relate to health decision making (decisions about treatment, admission to a long term care home, and Personal assistance services in a long term care home) are limited to the following:

                • Application for review of finding of incapacity  
                • Application for appointment of Representative
                • Application with respect to place of treatment
                • Application for directions
                • Application to depart from wishes
                • Application to determine SDM  compliance with s. 21

                These applications are explained in other Q and As.

                  What is a Form G Application to the Consent and Capacity Board -– Application to determine compliance of the SDM with the principles for giving or refusing consent?

                  A Form G application[70] is an application to the Consent and Capacity Board made by a health practitioner who is offering treatment if he or she is of the opinion that a substitute decision-maker is not making decisions for an incapable patient as required by the law, The SDM is required to make decisions by following the patient’s previous capable wishes or by acting in the best interests of the patient. These are referred to in the legislation as the principles for giving or refusing consent in s. 21 of the health care consent Act. .  

                  By making this application, the health practitioner is asking the Consent and Capacity Board for a determination as to whether the SDM is acting as required by the law.

                  The parties who are the people with the right to participle in this application are

                  • The health practitioner who proposed the treatment.
                  • The incapable person.
                  • The substitute decision-maker.
                  • Any other person whom the Consent and Capacity Board specifies.[71] 

                  On this application, the Consent and Capacity Board may confirm that the SDM is acting appropriately and is following the patient’s previous capable wishes or is acting in the patient’s best interests.

                  The Consent and Capacity Board may also decide that the SDM is not making decisions for the incapable person following these s. 21 principles

                  If that happens then the Consent and Capacity Board may give directions to the SDM as to what decisions to make that do comply with s.21 principles.[72]and give the SDM a time period[73] in which to comply with these directions. If the SDM fails to comply within the specified time period, the SDM would be considered as no longer meeting the requirements to be an SDM and would no longer be entitled to act as SDM for the incapable patient. [74] Any subsequent SDM stepping in to make decisions for the incapable patient would be required to comply with the directions given by the Board on the application within the time specified by the Board. If that subsequent SDM had information about the incapable patient’s previous capable wishes that were unknown at the time of the Form G application, the subsequent SDM may apply to the consent and Capacity Board, with the Board’s permission, to ask for directions. [75]

                  • [70] Health Care Consent Act, s.37
                  • [71] Health Care Consent Act, s.37 (2)
                  • [72] Health Care Consent Act, s.37 (4)
                  • [73] Health Care Consent Act, s.37 (5)
                  • [74] Health Care Consent Act, s.37 (6)
                  • [75] Health Care Consent Act, s.37 (6.1)
                  What could an SDM do if he or she doesn’t understand the incapable person’s previous capable wish?  (Form D Application to Consent and Capacity Board for Directions)

                  An SDM may apply to the Consent and Capacity Board to ask the CCB for “directions”,[76] if the SDM is not certain

                  • what the wish means because the wish is not clear or
                  • it’s not clear whether the wish applies to the decision that needs to be made, or
                  • it’s not clear whether the wish was expressed while the incapable person was capable; or
                  • it is not clear whether the wish was expressed after the incapable person attained 16 years of age

                  The health practitioner involved in the care of the person may also make this application to the Consent and Capacity Board. If the health practitioner makes this application instead of the SDM, then notice must be given to the SDM that the health practitioner is doing this.

                  The Consent and Capacity Board then will make an order which the SDM would be required to follow when making decisions for the incapable person.

                  This type of application is available not only to help the SDM make decisions for the incapable person in accordance with their duty to make decisions honouring the wishes of the person but also to protect the SDM if there are disagreements with other people who are not the SDMs  if they think the wish means something other than what the SDM thinks it means.

                  • [76] Health Care Consent Act, s.35
                  Does the SDM need to follow a previous capable wish to refuse a treatment if the SDM thinks that the person, if still capable, would have made a different wish? (Form E – Application to Consent and Capacity Board to depart from Wishes)

                  If a substitute decision-maker is required to refuse a treatment because the person when capable had made a wish for that refusal, but the SDM believes that the person if still capable would have changed their minds and consented to the treatment, the SDM may apply to the Consent and Capacity Board  for an order permitting the SDM to consent to that treatment .[77] This is called a Form E application to the Consent and Capacity Board to Depart from Wishes.

                  The SDM may believe that the person if still capable would have consented because the person could not have known what their health condition would be in the future when they wished to refuse the treatment.  The SDM having all the information that the patient. when capable, didn’t have may be in a better position to evaluate whether the consent to treatment should be given.

                  This application may also be made by the health practitioner treating the person. If the health practitioner makes this application, notice must be given to the SDM.  

                  The Consent and Capacity Board will give permission to the SDM to consent to that treatment refused in the previous capable wish if the Board is satisfied that the incapable person, if capable, would probably give consent because the likely result of the treatment is significantly better than would have been anticipated at the time the wish was expressed

                  • [77] Health Care Consent Act, S. 36
                  What may other family or friends of the incapable patient do if they have concerns about how the SDM is making decisions?

                   

                  If other family or friends of the incapable patient think that an SDM is not making appropriate decisions and is not honouring the patients previous capable wishes or not acting in the patients best interests, they have a number of options.

                  1. Talk to the SDM The family and friends should raise their concerns with the SDM particularly if the family or friends have information about the patient’s previous capable wishes that the SDM may not know about or appears to not understand.   The SDM must try to figure out what were the patient’s last known capable wishes and it may be that they weren’t aware of some later capable wishes that others know about. Ultimately it is the SDM that must decide what were the last known capable wishes and what the patient meant by those wishes, despite what others may say.
                  2. Talk to the incapable patient’s health practitioner The family and friends could talk to the patient's health practitioner and raise their concerns with him or her. If the health practitioner believes that the SDM is not making decisions for the incapable patient by honouring their previous capable wishes or acting in the patient’s best interests, the health practitioner may apply to the Consent and Capacity Board to ask the Board to review the SDMs decision making .This is called a Form G application.  Family and friends cannot make a Form G application.
                  3. Apply to the Superior Court or the Consent and Capacity Board , whichever is appropriate  to become the SDM in place of the SDM now acting

                  If the SDM that the family and friends disagree with is a family member of the incapable patient (spouse, partner, child, parent, brother or sister, other relative) and is not a court ordered Guardian of the Person, attorney named in a POA Personal Care or Representative appointed by the CCB, the family or friends that want to become the SDM can apply to the court for an order to be named as Guardian of the Person. The Guardian of the person is the first ranking SDM in the SDM hierarchy.  As an alternative an application can be made to the Consent and Capacity Board by the family or friends to be named as the patient’s Representative,

                  If the SDM that the family or friends disagree with is an Attorney for Personal Care the only application that can be made to outrank that SDM is to the court.

                  Whether it is the Court or the Consent and Capacity Board, the Court or Board would need evidence of why the family or friends applying for an order believe that the SDM is not acting appropriately as SDM and why the applicant would be a better SDM.