Every individual in Ontario has the right to make their own health and personal care decisions, as long as they are capable of doing so. Concepts such as ‘capacity’ and ‘informed consent’ often play a role in personal injury lawsuits against health care institutions and in medical malpractice claims, when a plaintiff may argue that a particular treatment or course of action was performed without the patient’s consent.
Although this sounds clear and straightforward, there are strict legal definitions of ‘capacity’, ‘consent’ and ‘substitute decision maker’ that are used by the courts and professional regulatory bodies and that every patient and care-giver should know.
Consent to Treatment
Before administering treatment, health care professionals must obtain consent from their patients. Failure to do so is in contravention of Ontario law and professional standards.
There are four primary elements of consent to treatment. Consent must:
- relate to the treatment;
- be given voluntarily;
- not be obtained through misrepresentation or fraud; and,
- consent must be informed.
It is important to note that in Ontario, individuals are presumed to be capable of providing consent to treatment, unless there are reasonable grounds to suspect incapacity. Further, health care professionals are required to follow a patient’s wishes, if they are known.
How is Consent Conveyed?
Consent can be express or implied. Express consent is direct and unequivocal. Implied consent is inferred from words or behaviour surrounding the circumstances, such that a reasonable person would believe that consent was given.
Exceptions to Informed Consent
The only exception to the informed consent requirement for treatment is treatment in an ‘emergency’ situation. The Health Care Consent Act (HCCA) describes an emergency as a situation where the subject of the proposed treatment is experiencing severe suffering or is at risk of sustaining serious harm if the treatment is not administered promptly.
With respect to admission to a care facility, an individual may be admitted to a facility in a ‘crisis’ situation. Under the HCCA a crisis relates to the condition of the person who is being admitted to a facility. A person can be admitted if a health care provider, responsible for admissions, decides that the incapable person requires immediate admission.
In both of these situations it is the responsibility of the care professional to determine whether an emergency situation or crisis exists, pursuant to the HCCA.
In non-emergency situations, there may still be instances where a patient is unable to provide legal consent to treatment. In these cases, a designated Substitute Decision Maker (SDM) is required to provide consent on the patient’s behalf.
How is Capacity Assessed?
Capacity can often be gleaned from direct observation. For example, if the person appears confused, depressed, anxious or unaware, they may not be mentally capable of providing legal consent. Information given by family members or other caregivers may help in making the determination of capacity. There are significant legal considerations involved in determining whether a patient is capable of making decisions about their personal health care. It is prudent to complete a full assessment and collect as much information as possible, including a patient’s medical history, mental health history, values and beliefs.
In recent years, the courts have clarified elements of the test for capacity. In Starson v. Swayze, the Court stated that capacity involves a two part inquiry. It must be determined whether an individual:
- has the cognitive ability to understand the relevant information being given; and,
- can appreciate the reasonably foreseeable consequences of a decision or lack of one.
The Court in Neto v. Klukach determined that the test for capacity does not involve a determination as to whether the patient has made a reasonable choice, but whether an individual is capable under the law. An individual’s capacity may change over time and therefore it is important to assess capacity on an ongoing basis.
What Happens if a Person is Incapable of Providing Consent?
If an individual is deemed to be incapable, they must be informed about the decision:
- The person must be advised of his or her legal rights, unless the situation is an emergency or crisis situation.
- The person must be informed that a Substitute Decision Maker will make the decision on his or her behalf.
- The person must be told that that he or she has a right to review the finding of incapacity or to request an alternative or additional Substitute Decision Maker to be appointed by applying to the Consent and Capacity Board.
- The person’s Substitute Decision Maker will be identified and provided with all the information needed to make a decision.
A person also has the right to challenge the finding of capacity by appealing to the Consent and Capacity Board.
Substitute Decision Maker
An individual can appoint a Substitute Decision Maker (SDM) who can make decisions on the individual’s behalf if they are deemed incapable. An SDM has the power to make decisions about all aspects of an individual’s care including health, shelter, clothing, nutrition, safety, and hygiene.
The process of appointing an SDM includes specific legal requirements:
- An SDM must be appointed in writing through a Power of Attorney (POA) for Personal Care.
- The document must be signed and witnessed.
- In order to have a valid POA, the person appointing an SDM must be capable of doing so and understand precisely what it means.
A person can appoint one or more SDMs and those SDMs can be made jointly or separately responsible for different aspects of care. Anyone can be an SDM, except a person paid to provide the individual care, a person who is mentally incapable, or an individual younger than 16 years of age.
The role of the SDM is to make decisions that are in the best interests of the incapable person. The SDM must follow the wishes expressed by the individual when they were capable, unless it is impossible to do so. When making a decision based on best interests, the following factors must be considered:
- The person’s current wishes
- The values and beliefs that the SDM knows the person held
- Whether the SDM’s decision will improve quality of life
- Whether the expected benefits outweigh the potential risks
It is important to note that an individual can always revoke or change their SDM as long as they are capable of creating a new POA document.
Reach out, we can help
At Howie, Sacks & Henry, we have extensive experience helping clients to navigate the health care consent system in Ontario. If you have questions about the treatment a loved one has received, or concerns about a patient’s capacity to consent to treatment, we want to help — please contact Samantha Shatz at 647-796-0086 or SShatz@hshlawyers.com.