Consent to Treatment, Admission to Long-Term Care Home and Community Services

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1 Consent to Treatment, Admission to Long-Term Care Home and Community Services 4.1 Overview of Consent Provisions Client consent is a critical component of the various pieces of legislation that affect the functions of the Community Care Access Centre (CCAC). The Nursing Homes Act (NHA), the Homes for the Aged and Rest Homes Act (HARHA), the Charitable Institutions Act (CIA), the Long-Term Care Act, 1994 (LTCA) and the Health Care Consent Act, 1996 (HCCA) set out the provisions that the CCAC must follow when obtaining consent from a person or, where the person is incapable, from the person s lawfully authorized substitute decision-maker (SDM) for decisions regarding consent to community service, treatment, and/or admission to a long-term care (LTC) home. A person who makes decisions for another person is called a substitute decision-maker (SDM). All legislative references in this chapter, unless stated otherwise, are to the HCCA. Subsections 4.3 to 4.7 in this manual outline the processes for seeking consent to treatment and subsections 4.8 to 4.10 outline the processes for seeking consent to admission to a LTC home Applicable Legislation Long-Term Care Act, 1994 Section 24 of the LTCA states that Nothing in this Act authorizes an approved agency to assess a person s requirements, determine a person s eligibility or provide a community service to a person without the person s consent. Before the CCAC is authorized to assess a person s requirements, determine eligibility or provide any community service (e.g., homemaking or personal support services), informed consent must be obtained from the person. Subsection 3(1)6 of the LTCA states that a person has the right to give or refuse consent to the provision of any community service. September

2 Under subsection 2(3) of the LTCA, community services are community support services, homemaking services, personal support services and professional services. Each of these services is defined in subsections 2(3) to (7) of the LTCA. Under section 10 of the HCCA, a health practitioner (a defined term under the HCCA) must not administer treatment (also a defined term under the HCCA) and must take reasonable steps to ensure that it is not administered unless he or she is of the opinion that the person is capable with respect to the treatment and the person has given consent. If the person is not capable of giving consent to the treatment, consent must be sought from the person s legally authorized SDM who has the authority to make the decision. Therefore, the CCAC must obtain consent from the person, or the person s SDM, where applicable, to both the assessment for eligibility and if determined to be eligible, the delivery of services. (See subsection #2.2 in this manual for an overview of the LTCA.) Health Care Consent Act, 1996 The HCCA comprehensively deals with the issue of consent to treatment and contains a substitute decision-making scheme to obtain consent to treatment on behalf of persons who are incapable of making a treatment decision. The HCCA also provides a substitute decisionmaking scheme to obtain consent on behalf of persons who are incapable of making decisions about admission to care facilities (LTC homes) and the use of personal assistance services in a LTC home. The HCCA: confirms the right of capable individuals to make informed decisions about treatment; sets out the elements of consent and informed consent to treatment in one piece of legislation that applies to treatment in all settings by health practitioners specified in the HCCA; provides a mechanism to obtain decisions from a SDM for those who, at the time treatment, admission to a LTC home or personal assistance service in a LTC home is proposed or required, are not mentally capable of making the decision on their own behalf; allows persons who are found incapable of consenting to treatment, admission to a LTC home or a personal assistance service in a LTC home to apply to the Consent and Capacity Board to have the finding reviewed; and requires that wishes regarding treatment, admission to a LTC home and personal assistance services expressed by a person while capable and after reaching the 16 years of age, be followed by the SDM when making a decision on behalf of an incapable person. Substitute Decisions Act, 1992 The Substitute Decisions Act, 1992 (SDA) is also relevant when considering decision-making for persons that are incapable of making decisions about their personal care and managing their property. The SDA governs what may happen when a person is not mentally capable of making certain decisions about their own property (including finances) or personal care. September

3 Under the SDA, a person who is capable of doing so may through the following documents appoint a SDM to make decisions on his or her behalf if he or she becomes incapable of making these decisions in the future: Continuing power of attorney for property: a legal document in which a person gives someone else (the attorney(s) for property) the legal authority to make decisions regarding his or her finances (property) if he or she becomes mentally incapable of making those decisions. The power of attorney may provide that it comes into effect on a specified date or when a specified contingency happens (such as when the person becomes incapable of managing property). A person must be at least 18 years old in order to make a continuing power of attorney for property. Power of attorney for personal care: a legal document in which a person gives someone else (the attorney(s) for personal care) the legal authority to make personal care decisions (regarding health care, nutrition, shelter, clothing, hygiene or safety) on his or her behalf if he or she becomes mentally incapable of making decisions about any or all of those matters. A person must be at least 16 years old to make a power of attorney for personal care. A person who is incapable of making decisions about property or personal care may still be capable of making a power of attorney. The person named in the power of attorney to make the decisions is called the attorney ; in this context attorney does not mean a lawyer. The attorney is the SDM for the person when a valid power of attorney becomes effective. There is no legal requirement that a person must appoint an attorney for property or personal care. Where there is no power of attorney document, or there are other circumstances that make appointing a guardian necessary, the SDA sets out the circumstances and procedures for the appointment of a guardian who is authorized to act as the SDM for property or personal care for a person who is mentally incapable. It should not be assumed that attorneys or guardians have the authority to make all personal care or property decisions on behalf of the incapable person. The terms of the power of attorney or the court order appointing the guardian indicate the scope of the SDM s authority to make decisions and any limitations on the authority. The SDA and the HCCA operate in tandem with each other. The SDA provides that the SDM (either the attorney for personal care or guardian for personal care for an incapable person) is required to follow the provisions of the HCCA when making decisions on the incapable person s behalf to which the HCCA applies. Decisions to which the HCCA applies are treatment, admission to a LTC home, and personal assistance services in a LTC home. When an incapable person does not have an SDM under the SDA with the authority to make a decision under the HCCA, the HCCA permits other persons to act as the SDM to make decisions about treatment, admission to a LTC home, and personal assistance services in a LTC home without a court appointment. These other persons are family members, including spouses, a board appointed representative or the Public Guardian and Trustee. See the discussion below for more details about the HCCA. September

4 4.2 Definitions of Terms in the Health Care Consent Act, 1996 Subsection 2(1) of the Health Care Consent Act, 1996 (HCCA) sets out the following definitions: Board means the Consent and Capacity Board. care facility means, (a) an approved charitable home for the aged, as defined in the Charitable Institutions Act, (b) a home or joint home, as defined in the Homes for the Aged and Rest Homes Act, (c) a nursing home, as defined in the Nursing Homes Act, or (d) a facility prescribed by the regulations as a care facility; Note: The care facilities listed above are referred to as long-term care (LTC) homes throughout this manual. At this time there are no regulations prescribing other facilities under (d). course of treatment means a series or sequence of similar treatments administered to a person over a period of time for a particular health problem. health practitioner means, (a) a member of the College of Audiologists and Speech-Language Pathologists of Ontario, (b) a member of the College of Chiropodists of Ontario, including a member who is a podiatrist, (c) a member of the College of Chiropractors of Ontario, (d) a member of the College of Dental Hygienists of Ontario, (e) a member of the Royal College of Dental Surgeons of Ontario, (f) a member of the College of Denturists of Ontario, (g) a member of the College of Dietitians of Ontario, (h) a member of the College of Massage Therapists of Ontario, (i) a member of the College of Medical Laboratory Technologists of Ontario, (j) a member of the College of Medical Radiation Technologists of Ontario, (k) a member of the College of Midwives of Ontario, (l) a member of the College of Nurses of Ontario, (m) a member of the College of Occupational Therapists of Ontario, (n) a member of the College of Optometrists of Ontario, (o) a member of the College of Physicians and Surgeons of Ontario, (p) a member of the College of Physiotherapists of Ontario, (q) a member of the College of Psychologists of Ontario, (r) a member of the College of Respiratory Therapists of Ontario, (s) a naturopath registered as a drugless therapist under the Drugless Practitioners Act, or (t) a member of a category of persons prescribed by the regulations as health practitioners. Note: At this time, there are no regulations that prescribe additional categories of health practitioners. Social workers are not considered health practitioners under the HCCA. September

5 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. plan of treatment means a plan that, (a) is developed by one or more health practitioners, (b) deals with one or more of the health problems that a person has and may, in addition, 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, and (c) provides for the administration to the person of various treatments or courses of treatment and may, in addition, provide for the withholding or withdrawal of treatment in light of the person's current health condition. treatment means anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other health-related purpose, and includes a course of treatment, plan of treatment or community treatment plan, but does not include, (a) the assessment for the purpose of this Act of a person's capacity with respect to a treatment, admission to a care facility or a personal assistance service, the assessment for the purpose of the Substitute Decisions Act, 1992 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, (h) anything prescribed by the regulations as not constituting treatment. Section 9 provides that, in Part II of the HCCA dealing with treatment, a substitute decisionmaker (SDM) means a person who is authorized under section 20 to give or refuse consent to a treatment on behalf of a person who is incapable with respect to the treatment Capacity and Presumption of Capacity The HCCA states: Capacity s. 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. September

6 Presumption of capacity s. 4(2) A person is presumed to be capable with respect to treatment, admission to a care facility and personal assistance services. Exception s. 4(3) A person is entitled to rely on the presumption of capacity with respect to another person unless he or she has reasonable grounds to believe that the other person is incapable with respect to the treatment, the admission or the personal assistance service, as the case may be. Note: The Community Care Access Centre (CCAC) may rely on the presumption that a person has capacity unless reasonable grounds exist to believe otherwise. Capacity with respect to personal care refers to a person s ability to understand information relevant to making decisions about aspects of the person s personal care, such as health care, nutrition, shelter, clothing, hygiene or safety, and ability to appreciate the reasonably foreseeable consequences of a decision or lack of decision. (If the health care decisions are about treatment, admission to a long-term care (LTC) home or personal assistance services for a resident in a LTC home, the HCCA governs the substitute decision-making.) A person may be capable of making decisions about one or more aspects of personal care, but not others. For example, a person may be capable of making decisions about clothing but not health care; a person may be capable of making decisions about health care, but may no longer be capable 1 of making decisions about property (e.g., banking, paying bills, managing investments) and vice versa. It should also be noted that a person who is physically unable to care for himself or herself may be capable of making decisions about personal care Wishes of Capable Person The HCCA states: Wishes s. 5(1) A person may, while capable, express wishes with respect to treatment, admission to a care facility or a personal assistance service. Manner of expression s. 5(2) Wishes may be expressed in a power of attorney, in a form prescribed by the regulations, in any other written form, orally or in any other manner. Later wishes prevail s. 5(3) Later wishes expressed while capable prevail over earlier wishes. 1 Under the SDA, a person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. September

7 4.2.3 Restraint, Confinement The HCCA does not affect the duty to restrain or confine a person in certain circumstances: s. 7 This Act does not affect the common law duty of a caregiver to restrain or confine a person when immediate action is necessary to prevent serious bodily harm to the person or to others. September

8 4.3 Consent to Treatment The Community Care Access Centre (CCAC) must not administer treatment to a person without the express or implied consent (see subsection #4.3.4 in this manual) of the person who is the subject of the treatment. If the person is incapable of making the decision, the consent of the legally authorized substitute decision-maker (SDM) is required. Legislative references in subsection 4.3 in this manual are all from the Health Care Consent Act, 1996 (HCCA) No Treatment Without Consent s. 10(1) A health practitioner who proposes a treatment for a person shall not administer the treatment, and shall take reasonable steps to ensure that it is not administered, unless, (a) he or she is of the opinion that the person is capable with respect to the treatment, and the person has given consent; or (b) he or she is of the opinion that the person is incapable with respect to the treatment, and the person's substitute decision-maker has given consent on the person's behalf in accordance with this Act). Opinion of Board or court governs s. 10(2) 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 Board on an application for review of the health practitioner s finding, or by a court on an appeal of the Board s decision, the health practitioner shall not administer the treatment, and shall take reasonable steps to ensure that it is not administered, unless the person has given consent Elements of Consent s. 11(1) The following are the elements required for consent to treatment: 1. The consent must relate to the treatment. 2. The consent must be informed. 3. The consent must be given voluntarily. 4. The consent must not be obtained through misrepresentation or fraud Informed Consent s. 11(2) A consent to treatment is informed if, before giving it, (a) the person received the information about the matters set out in subsection (3) that a reasonable person in the same circumstances would require in order to make a decision about the treatment; and (b) the person received responses to his or her requests for additional information about those matters. September

9 s. 11(3) The matters referred to in subsection (2) are: 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. 6. The likely consequences of not having the treatment. Consent is only valid if the person has capacity to make the decision Express or Implied Consent Section 11(4) of the HCCA states consent to treatment may be express or implied. Express consent is consent that is written or spoken. Implied consent occurs when the person whose consent is needed does something that in the circumstances a reasonable person would understand to indicate that the person consents. For example, if a staff member says that they are offering a person a spoonful of cough medicine, and the person opens his or her mouth and swallows the medicine, the person has impliedly consented to take the medicine. In this example, the staff member cannot rely on the implied consent unless the person is capable of making the decision to consent to taking cough medicine Withdrawal of Consent The client, or the SDM if the client is incapable, may withdraw the consent to treatment at any time. The HCCA states: s. 14 A consent that has been given by or on behalf of the person for whom the treatment was proposed may be withdrawn at any time, (a) by the person, if the person is capable with respect to the treatment at the time of the withdrawal; (b) by the person's substitute decision-maker, if the person is incapable with respect to the treatment at the time of the withdrawal Responsibility for Consent to Treatment The health practitioner proposing the particular treatment is responsible for determining whether or not the person is capable with respect to the treatment. The HCCA states: s. 10(1) A health practitioner who proposes a treatment for a person shall not administer the treatment, and shall take reasonable steps to ensure that it is not administered, unless, (a) he or she is of the opinion that the person is capable with respect to the treatment, and the person has given consent; or September

10 (b) he or she is of the opinion that the person is incapable with respect to the treatment, and the person's substitute decision-maker has given consent on the person's behalf in accordance with this Act. September

11 4.4 Capacity to Consent to Treatment Legislative references in subsection 4.4 in this manual are all from the Health Care Consent Act, 1996 (HCCA) Presumption that a Person is Capable The HCCA states in section 4(2) A person is presumed to be capable with respect to treatment, admission to a care facility and personal assistance services. The Community Care Access Centre (CCAC) must presume that a person is capable of making a decision with respect to treatment as defined in the HCCA (i.e., nursing, occupational therapy, physiotherapy, speech-language pathology or dietetics services) unless there are reasonable grounds to believe that the person is not capable. (See Consent to Treatment, subsection #4.3 in this manual.) Capacity to Consent to Treatment Under the HCCA Capacity depends on treatment s. 15(1) A person may be incapable with respect to some treatments and capable with respect to others. Capacity depends on time s.15 (2) A person may be incapable with respect to a treatment at one time and capable at another. Return of capacity s. 16 If, after consent to a treatment is given or refused on a person's behalf in accordance with this Act, the person becomes capable with respect to the treatment in the opinion of the health practitioner, the person's own decision to give or refuse consent to the treatment governs. If, in the opinion of the health practitioner, capacity returns then the person s own decision to give or refuse consent governs. For example, due to an injury or illness, a person may be incapable of making a decision about a surgical intervention. After recovering from surgery, the person s capacity may return. If capacity returns, the capable person makes the decision to give or refuse consent to treatment Information to be Provided by Health Practitioner Information s.17 A health practitioner shall, in the circumstances and manner specified in guidelines established by the governing body of the health practitioner's profession, provide to persons September

12 found by the health practitioner to be incapable with respect to treatment such information about the consequences of the findings as is specified in the guidelines. Health practitioners must follow their professional governing body s guidelines with respect to the information that must be provided to incapable persons about the consequences of the finding of incapacity. The information referred to in section 17 includes advising persons that they have the right to apply to the Consent and Capacity Board (the Board) (see definition of Board in subsection #4.7 in this manual or Appendix #A in this manual) to review the finding of incapacity Treatment Must Not Begin in Certain Circumstances Section 18 of the HCCA deals with circumstances when treatment must not begin for a certain period of time. Treatment must not begin s. 18(1) This section applies if, (a) a health practitioner proposes a treatment for a person and finds that the person is incapable with respect to the treatment; (b) before the treatment is begun, the health practitioner is informed that the person intends to apply, or has applied, to the Board for a review of the finding; and (c) the application to the Board is not prohibited by subsection 32(2). Same s. 18(2) This section also applies if, (a) a health practitioner proposes a treatment for a person and finds that the person is incapable with respect to the treatment; (b) before the treatment is begun, the health practitioner is informed that, (i) the incapable person intends to apply, or has applied, to the Board for appointment of a representative to give or refuse consent to the treatment on his or her behalf, or (ii) another person intends to apply, or has applied, to the Board to be appointed as the representative of the incapable person to give or refuse consent to the treatment on his or her behalf; and (c) the application to the Board is not prohibited by subsection 33(3). (3) In the circumstances described in subsections (1) and (2), the health practitioner shall not begin the treatment, and shall take reasonable steps to ensure that the treatment is not begun, (a) until 48 hours have elapsed since the health practitioner was first informed of the intended application to the Board without an application being made; (b) until the application to the Board has been withdrawn; (c) until the Board has rendered a decision in the matter, if none of the parties to the application before the Board has informed the health practitioner that he or she intends to appeal the Board s decision; or (d) if a party to the application before the Board has informed the health practitioner that he or she intends to appeal the Board s decision, September

13 (i) until 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 s. 18 (4) This section does not apply if the health practitioner is of the opinion that there is an emergency within the meaning of subsection 25 (1). Note: There are situations where treatment can be provided in an emergency. (See subsection #4.6 in this manual.) September

14 4.5 Consent to Treatment on Behalf of an Incapable Person If a person is incapable of consenting to a treatment, the legally authorized substitute decisionmaker (SDM) may give or refuse consent to the treatment on the person s behalf. Legislative references in subsection 4.5 in this manual are all from the Health Care Consent Act, 1996 (HCCA) Substitute Decision-Maker The SDM for treatment means a person who is authorized under section 20 of the HCCA to give or refuse consent to a treatment on behalf of a person who is incapable with respect to the treatment. (See section 9 of the HCCA.) Information Required by the Substitute Decision-Maker Information s. 22(1) Before giving or refusing consent to a treatment on an incapable person's behalf, a substitute decision-maker is entitled to receive all the information required for an informed consent as described in subsection 11(2). Conflict s. 22(2) Subsection (1) prevails despite anything to the contrary in the Personal Health Information Protection Act, The SDM has the right to receive all the information needed for an informed consent before making treatment decisions Identifying the Substitute Decision-Maker List of persons who may give or refuse consent s. 20(1) If a person is incapable with respect to a treatment, consent may be given or refused on his or her behalf by a person described in one of the following paragraphs: 1. The incapable person's guardian of the person, if the guardian has authority to give or refuse consent to the treatment. 2. The incapable person's attorney for personal care, if the power of attorney confers authority to give or refuse consent to the treatment. 3. The incapable person's representative appointed by the Board under section 33, if the representative has authority to give or refuse consent to the treatment. 4. The incapable person's spouse or partner. 5. A child or parent of the incapable person, or a children's aid society or other person who is lawfully entitled to give or refuse consent to the treatment in the place of the parent. This paragraph does not include a parent who has only a right of access. If a children's aid society or other person is lawfully entitled to give or refuse consent to the treatment in the place of the parent, this paragraph does not include the parent. September

15 6. A parent of the incapable person who has only a right of access. 7. A brother or sister of the incapable person. 8. Any other relative of the incapable person. Note: This above list includes siblings, friends (under 1, 2 or 3), same sex partners or spouses. The list of possible SDMs is ranked in descending order of priority, with 1 being the highest priority. Those persons higher on the list take precedence over those below as long as they meet the requirements of a SDM. A power of attorney for personal care may authorize the attorney to make decisions regarding the incapable person s health care (including treatment, admission to a long-term care (LTC) home, a personal assistance service in a LTC home under the HCCA), nutrition, shelter, clothing, hygiene or safety. The power of attorney may not authorize the SDM to make decisions about all these things: for example, a person may choose to limit the power of attorney to one or more of these areas of personal care, including health care. Similarly, a court appointing a guardian of the person may limit the types of decisions that the guardian has the authority to make. For more information on the authority of an attorney or guardian for personal care, see the Substitute Decisions Act, 1992 (SDA). With respect to the list in subsection 20(1), the HCCA also provides the following: Meaning of spouse s. 20(7) Subject to subsection (8), two persons are spouses for the purpose of this section if, (a) they are married to each other; or (b) they are living in a conjugal relationship outside marriage and, (i) have cohabited for at least one year, (ii) are together the parents of a child, or (iii) have together entered into a cohabitation agreement under section 53 of the Family Law Act. Not spouse s. 20(8) Two persons are not spouses for the purpose of this section if they are living separate and apart as a result of a breakdown of their relationship. Meaning of "partner" s. 20(9) For the purpose of this section, "partner" means, (a) Repealed. (b) either of two persons who have lived together for at least one year and have a close personal relationship that is of primary importance in both persons' lives. Meaning of relative s. 20(10) Two persons are relatives for the purpose of this section if they are related by blood, marriage or adoption. September

16 4.5.4 Requirements of a Substitute Decision-Maker A SDM (as defined the subsection 20(1) of the HCCA and subsection #4.5.3 in this manual) may give or refuse consent only if he or she, Requirements s. 20(2)(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. Meaning of "available" s. 20(11) For the purpose of clause (2)(d), a person is available if it is possible, within a time that is reasonable in the circumstances, to communicate with the person and obtain a consent or refusal Role of the Public Guardian and Trustee No person in subs. (1) to make decision s. 20(5) If no person described in subsection (1) meets the requirements of subsection (2), the Public Guardian and Trustee shall make the decision to give or refuse consent. Conflict between persons in same paragraph s. 20(6) If two or more persons who are described in the same paragraph of subsection (1) and who meet the requirements of subsection (2) disagree about whether to give or refuse consent, and if their claims rank ahead of all others, the Public Guardian and Trustee shall make the decision in their stead. The Public Guardian and Trustee shall make the decision to give or refuse consent to treatment if: there is no person on the list of SDMs set out in subsection 20(1) who meets the requirements of a SDM in subsection 20(2); or there is a disagreement about whether to give consent between or among two or more equally ranking potential substitute decision-makers if their claims rank ahead of all others in the list; for example, two children of the incapable person disagree about the decision and there is no person listed in number 1 through 4 of the list, children being ranked number 5. (See HCCA, subsections 20(5) and (6) and the list of substitute decision-makers in subsection 20(1) or #4.5.3 in this manual.) Principles for Giving or Refusing Consent Prior Capable Wishes The HCCA requires the SDM to make decisions about treatment in accordance with any known wishes applicable to the circumstances that were expressed by the incapable person while September

17 capable and after reaching the age of 16 years. If there are no such wishes, the decisions are required to be made in the best interests of the incapable person. Best interests is a defined term (see subsection #4.5.7 in this manual). In certain circumstances, the SDM or the health practitioner proposing the treatment may apply to the Consent and Capacity Board (the Board) (see definition of Board in subsection #4.7 in this manual or Appendix #A in this manual) for directions about the expressed wishes. Principles for giving or refusing consent s. 21(1) A person who gives or refuses consent to a treatment on an incapable person s behalf shall do so in accordance with the following principles: 1. If the person knows of a wish applicable to the circumstances that the incapable person expressed while capable and after attaining 16 years of age, the person shall give or refuse consent in accordance with the wish. 2. If the person does not know of a wish applicable to the circumstances that the incapable person expressed while capable and after attaining 16 years of age, or if it is impossible to comply with the wish, the person shall act in the incapable person s best interests Principles for Giving or Refusing Consent Best Interests Best interests s. 21(2) In deciding what the incapable person's best interests are, the person who gives or refuses consent on his or her behalf shall take into consideration, (a) the values and beliefs that the person knows the incapable person held when capable and believes he or she would still act on if capable; (b) any wishes expressed by the incapable person with respect to the treatment that are not required to be followed under paragraph 1 of subsection (1); and (c) 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 Consent to Ancillary Treatment s. 23 Authority to consent to a treatment on an incapable person's behalf includes authority to consent to another treatment that is necessary and ancillary to the treatment, even if the incapable person is capable with respect to the necessary and ancillary treatment. September

18 For example, where a SDM has given consent to surgery, the SDM can give consent to pre or post-operative treatment that is necessary or ancillary to the surgery even where the incapable person is capable of making decisions about the pre or post-operative treatment. September

19 4.6 Emergency Treatment Without Consent In emergency circumstances, a person may be incapable of consenting to treatment because the person is unconscious or severely traumatized, or unable to communicate with health practitioners due to a language difficulty, or for some other reason. Section 25 of the Health Care Consent Act, 1996 (HCCA) allows treatment of a person without consent in emergency situations, when the delay required to obtain consent or refusal from either the person or the person s substitute decision-maker (SDM) will prolong the person s suffering or put the person at risk of serious bodily harm. Legislative references in subsection 4.6 in this manual are all from the HCCA Definition of Emergency Under the HCCA Meaning of "emergency" s. 25(1) For the purpose of this section and section 27, there 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 Examination Without Consent In some situations, it may be necessary for a health practitioner to examine a person without consent in order to determine whether or not an emergency exists. The HCCA states: s. 25(4) Despite section 10, an examination or diagnostic procedure that constitutes treatment may be conducted by a health practitioner without consent if, (a) the examination or diagnostic procedure is reasonably necessary in order to determine whether there is an emergency; and (b) in the opinion of the health practitioner, (i) the person is incapable with respect to the examination or diagnostic procedure, or (ii) clauses (3) (b) and (c) apply to the examination or diagnostic procedure. Clauses 25(3)(b) and (c) of the HCCA state: s. 25(3)(b) 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; (c) 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 Emergency Treatment Without Consent: Incapable Person The following provisions apply when the person for whom the emergency treatment is proposed is incapable of making a decision to consent or refuse consent to treatment. The September

20 HCCA states: Emergency treatment without consent: incapable person s. 25(2) Despite section 10, a treatment may be administered without consent to a person who is incapable with respect to the treatment, if, in the opinion of the health practitioner proposing the treatment, (a) there is an emergency; and (b) the delay required to obtain a consent or refusal on the person's behalf will prolong the suffering that the person is apparently experiencing or will put the person at risk of sustaining serious bodily harm. Continuing treatment s. 25(6) Treatment under subsection (2) 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 a consent, or refusal of consent, to the continuation of the treatment. Search s. 25(8) When a treatment is begun under subsection (2) or (3), the health practitioner shall ensure that reasonable efforts are made for the purpose of finding the substitute decisionmaker, or a means of enabling the communication to take place, as the case may be. Return of capacity s. 25(9) If, after a treatment is begun under subsection (2), the person becomes capable with respect to the treatment in the opinion of the health practitioner, the person's own decision to give or refuse consent to the continuation of the treatment governs Emergency Treatment Without Consent: Capable Person The following provisions apply when the person for whom the emergency treatment is proposed is apparently capable of consenting or refusing to consent to treatment. A health practitioner may provide treatment to a capable person in an emergency under certain circumstances set out in the HCCA. Therefore, where those circumstances exist, the CCAC health practitioner may authorize the provision of service which is treatment to a capable person without the person s consent. The HCCA states: Emergency treatment without consent: capable person s. 25(3) Despite section 10, a treatment may be administered without consent to a person who is apparently capable with respect to the treatment, if, in the opinion of the health practitioner proposing the treatment, (a) there is an emergency; (b) 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; (c) 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; September

21 (d) 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 (e) there is no reason to believe that the person does not want the treatment. s.25(7) Treatment under subsection (3) 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. Search s.25(8) When a treatment is begun under subsection (2) or (3), the health practitioner shall ensure that reasonable efforts are made for the purpose of finding the substitute decisionmaker, or a means of enabling the communication to take place, as the case may be No Treatment Contrary to Expressed Capable Wishes No treatment contrary to wishes s. 26 A health practitioner shall not administer a treatment under section 25 if the health practitioner has reasonable grounds to believe that the person, while capable and after attaining 16 years of age, expressed a wish applicable to the circumstances to refuse consent to the treatment. Despite section 25 of the HCCA, emergency treatment without consent is prohibited when the health care practitioner has reasonable grounds to believe that the person expressed a prior capable wish to not have the treatment. An example of this would be the inability of a physician to provide a person of the Jehovah s Witness faith with a blood transfusion if there are reasonable grounds to believe that the person while capable and after attaining the age of 16 years expressed a wish not to have such treatment. A person may carry a card that identifies himself or herself as a Jehovah s Witness and indicates that he or she is not to be given a blood transfusion even for life saving purposes Emergency Treatment Despite Refusal by the SDM If a SDM has refused to consent to emergency treatment on behalf of an incapable person, but the health care practitioner has reason to believe that the SDM has not made the decision in accordance with the required principles for making a decision, the health care practitioner may proceed to administer the emergency treatment. The HCCA states: Emergency treatment despite refusal s. 27 If consent to a treatment is refused on an incapable person's behalf by his or her substitute decision-maker, the treatment may be administered despite the refusal if, in the opinion of the health practitioner proposing the treatment, (a) there is an emergency; and (b) the substitute decision-maker did not comply with section 21. September

22 See section 21 of the HCCA or principles for giving or refusing consent in subsection #4.5.6 in this manual. The required principles are that the SDM s decision must be made in accordance with the incapable person s wishes applicable to the circumstances that were expressed while capable and after reaching the age of 16 years. If there are no such wishes, the decision must be made in accordance with the SDM s determination of the incapable person s best interests as defined in the HCCA Keeping Records Immediately after administering an emergency treatment without consent for a capable person or an incapable person, the health care practitioner must record the reasons for the emergency intervention. The HCCA states: Record s. 25(5) After administering a treatment in reliance on subsection (2) or (3), the health practitioner shall promptly note in the person's record the opinions held by the health practitioner that are required by the subsection on which he or she relied. September

23 4.7 Applications to the Consent and Capacity Board Regarding Treatment The Consent and Capacity Board (the Board) is an independent adjudicative body created to conduct hearings under the Mental Health Act (MHA) and the Health Care Consent Act, 1996 (HCCA). The Board also conducts hearings about consent and capacity issues under the Personal Health Information Protection Act, 2004 (PHIPA). A person who is found by a health practitioner to be incapable with respect to treatment, has the right to have that finding reviewed by the Board. Under the HCCA, there are several applications that can be made to the Board and these include: Application Reference in this Manual Application for review of finding of incapacity #4.7.1 Application for appointment of a representative who will act as the substitute decision-maker (SDM) on behalf of an incapable person Application by a proposed representative to act as the SDM on behalf of an incapable person Application by a SDM or health practitioner for directions regarding wishes expressed about treatment Application by a SDM or health practitioner to obtain permission for the SDM to depart from wishes expressed by the incapable person Application by a health practitioner seeking determination as to whether a SDM complied with principles for giving or refusing consent #4.7.2 #4.7.3 #4.7.5 #4.7.6 #4.7.7 Legislative references in subsection 4.7 in this manual are all from the HCCA Application for a Review of Finding of Incapacity Application for review of finding of incapacity s. 32(1) A person who is the subject of a treatment may apply to the Board for a review of a health practitioner's finding that he or she is incapable with respect to the treatment. Exception s. 32(2) Subsection (1) does not apply to, (a) a person who has a guardian of the person, if the guardian has authority to give or refuse consent to the treatment; September

24 (b) a person who has an attorney for personal care, if the power of attorney contains a provision waiving the person's right to apply for the review and the provision is effective under subsection 50 (1) of the Substitute Decisions Act, Parties s. 32(3) The parties to the application are: 1. The person applying for the review. 2. The health practitioner. 3. Any other person whom the Board specifies. Decision of the Board Regarding Finding of Incapacity Powers of Board s. 32(4) The Board may confirm the health practitioner s finding or may determine that the person is capable with respect to the treatment, and in doing so may substitute its opinion for that of the health practitioner. Restriction on repeated applications s. 32(5) If a health practitioner s finding that a person is incapable with respect to a treatment is confirmed on the final disposition of an application under this section, the person shall not make a new application for a review of a finding of incapacity with respect to the same or similar treatment within six months after the final disposition of the earlier application, unless the Board gives leave in advance. Same s. 32(6) The Board may give leave for the new application to be made if it is satisfied that there has been a material change in circumstances that justifies reconsideration of the person s capacity. Decision effective while application for leave pending s. 32(7) The Board s decision under subsection (5) remains in effect pending an application for leave under subsection (6). If the Board agrees with the health practitioner s finding of incapacity, the person cannot apply for another review regarding the same or similar treatment until six months after the Board s decision, unless the Board gives permission to do so. Subsection 32(6) of the HCCA sets out when the Board would give permission for a further review before six months has elapsed Application for Appointment of Representative by Incapable Person An incapable person may ask the Board to appoint someone to give or refuse consent to a proposed treatment on his or her behalf. Such an application may be made in circumstances where there is no court appointed guardian with the authority to make the decision and the incapable person did not make a power of attorney document while capable of doing so and does not want a family member listed in subsection 20(1) in the HCCA to be the SDM. A September

25 representative appointed by the Board ranks above listed family members. (See list of SDMs in subsection #4.5.3 in this manual.) s. 33(1) A person who is 16 years old or older and who is incapable with respect to a proposed treatment may apply to the Board for appointment of a representative to give or refuse consent on his or her behalf. s. 33(3) Subsections (1) and (2) do not apply if the incapable person has a guardian of the person who has authority to give or refuse consent to the proposed treatment, or an attorney for personal care under a power of attorney conferring that authority Application for Appointment of Representative by Proposed Representative The proposed representative may make the application to the Board to be appointed as the representative: s. 33(2) A person who is 16 years old or older may apply to the Board to have himself or herself appointed as the representative of a person who is incapable with respect to a proposed treatment, to give or refuse consent on behalf of the incapable person. s. 33(3) Subsections (1) and (2) do not apply if the incapable person has a guardian of the person who has authority to give or refuse consent to the proposed treatment, or an attorney for personal care under a power of attorney conferring that authority Appointment of Representative Applicable Provisions The following apply to applications to appoint a representative, as described in subsections #4.7.2 and #4.7.3 in this manual. Parties s. 33(4) The parties to the application are: 1. The incapable person. 2. The proposed representative named in the application. 3. Every person who is described in paragraph 4, 5, 6 or 7 of subsection 20 (1). 4. The health practitioner who proposed the treatment. 5. Any other person whom the Board specifies. Appointment s. 33(5) In an appointment under this section, the Board may authorize the representative to give or refuse consent on the incapable person's behalf, (a) to the proposed treatment; (b) to one or more treatments or kinds of treatment specified by the 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 September

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