"A Guide to Consent and Capacity in Ontario - Erie St. Clair Ccac (Community Care Access Centre)" - Ontario, Canada

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A Guide to Consent and
Capacity in Ontario
A Guide to Consent and
Capacity in Ontario
Table of Contents
Introduction .............................................................................................. 1
What Is Informed Consent and Capacity? ...................................................... 2
Exceptions to Informed Consent and Capacity ................................................ 2
Who Determines Capacity? .......................................................................... 4
How is Consent and Capacity Assessed? ........................................................ 6
What Happens if a Person is Found Incapable of Consent? ............................... 7
Can a Finding of Incapacity be Challenged? ................................................... 8
What is a Substitute Decision Maker (SDM)? .................................................. 8
How Do I Create a Power of Attorney for Personal Care? ................................. 1
Power of Attorney for Personal Care vs. a “Living Will” ................................... 6
Making Decisions About a Person’s Finance and Property ................................. 7
What Happens if I Don’t Create a Power of Attorney for Personal Care? ............. 7
Resources ................................................................................................. 8
Introduction
Health care decisions are some of the most important choices that we make. In Ontario,
every person has the right to make their own health and personal care decisions as long as
they are capable of doing so.
In Ontario, capacity is defined by the Health Care Consent Act as understanding
the information that is needed to make a decision and the ability to appreciate the
consequences and/or risks of that decision. A person is presumed to be capable of making
health care decisions unless there are reasonable grounds to suspect incapacity, meaning
they are unable to make some or all of their care decisions.
In the event that someone is determined as being incapable of making a health care
decision, the person’s substitute decision maker (SDM) will be responsible for making a
decision on his or her behalf. The substitute decision maker, no matter who they are, is
required to make decisions based on a person’s known care wishes. Where the person’s care
wishes are unknown or impossible, the substitute decision maker must make decisions with
the person’s best interests in mind.
Being appointed as a substitute decision maker comes with a lot of responsibility. It can
often be a stressful and confusing role. The Erie St. Clair Community Care Access Centre
(CCAC) has put together this guide to assist patients, families, caregivers and substitute
decision makers in understanding consent and capacity, the role of the substitute decision
maker and what resources are available to them.
What is informed consent and capacity?
In Ontario, under the Health Care Consent Act, a health care provider needs a person’s
informed consent or permission in order to deliver any health care. To give informed
consent, a person needs to be:
• capable of making the decision;
• and given information about:
-their health condition;
-the recommended treatment;
-alternative options to the treatment;
-and likely outcomes and risks of either accepting or refusing treatment.
In Ontario, capacity is defined by the Health Care Consent Act as understanding
the information that is needed to make a decision and the ability to appreciate the
consequences and/or risks of that decision. A person is presumed to be capable of making
health care decisions unless there are reasonable grounds to suspect incapacity, meaning
they are unable to make some or all of their care decisions.
A GUIDE TO CONSENT AND CAPACITY IN ONTARIO
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While Ontario law views a person as either capable or incapable of certain tasks, the
person’s level of capacity may change. Also, a person may be capable of making one type of
decision but incapable of making another. Therefore, some people may need to be assessed
for capacity more than once or on an ongoing basis.
Exceptions to Informed Consent
The only exception to a health care professional needing informed consent to treatment is
in an emergency situation. The Health Care Consent Act states that an emergency is when
a person for whom treatment is proposed is apparently experiencing severe suffering or is
at risk of sustaining serious bodily harm if the treatment is not delivered. It is the health
professional’s responsibility to decide if there is an emergency situation.
The only exception to needing informed consent for admission to a care facility, such as a
long-term care home, is in a crisis situation. The Health Care Consent Act states that a crisis
relates to the condition of the person who is to be admitted to a care facility. In the event of
a crisis, a patient can be placed in a care facility without consent if the health professional
responsible for authorizing admissions to care facilities decides the incapable person
requires immediate admission. It is your local Community Care Access Centre (CCAC) that
determines the need for a crisis admission to a long-term care home. This is determined
through a comprehensive assessment.
However, health care providers are required to follow a patient’s wishes, if known, in any
and all emergency situations. It is for this reason that it is important to discuss your wishes
with your health care provider while you are capable of doing so.
Who Determines Capacity?
The health professional that assesses a person for capacity depends on why capacity is
being assessed. When it comes to health care, this is done for two reasons: treatment and
admission to a care facility – such as a long-term care home.
Treatment
Treatment is defined as anything done for a therapeutic, preventative, palliative, diagnostic,
cosmetic or other health-related reason that includes a plan of action.
The health professional proposing treatment assesses whether or not you are capable of
giving consent.
A person is automatically presumed to be capable of accepting or refusing treatment
unless there are reasonable grounds to suspect incapacity. Incapacity may be suspected
from direct observation (e.g. the person is confused, depressed, anxious, etc.) or from
information given by the patient, family or other caregivers.
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A GUIDE TO CONSENT AND CAPACITY IN ONTARIO
Admission to a Care Facility (such as a Long-Term Care Home)
Ontario law requires the consent of a patient before admission to a care facility such as a
long-term care home. However, sometimes a person does not recognize his or her need
for placement into a long-term care home, even when this placement is important to their
health. Those who suffer from a cognitive impairment or dementia, such as that associated
with Alzheimer’s disease, often experience decline in memory, reasoning, planning and
judgement. Due to this decline, they often require assistance with basic activities of daily
living (ADLs).
If incapacity is suspected, the patient’s capacity will be assessed. Those who assess for
capacity to consent to admission to a care facility are called evaluators.
The Erie St. Clair Community Care Access Centre (CCAC) has staff members that are
specially trained and qualified as evaluators. These evaluators are also known as CCAC
Care Coordinators. An assessment for capacity to consent to admission to a long-term care
facility is normally referred to these CCAC Care Coordinators.
How is Consent for Capacity Assessed?
The evaluator focuses specifically on the person’s capacity to make a decision about the
proposed treatment or admission. The person must be able to understand the information
that is important to making the decision and to appreciate the possible consequences of
a decision. Understanding means the ability to remember the information that is provided
to them about the treatment or admission. Appreciating means the ability to consider
the information and how accepting or refusing the treatment or admission may affect the
person’s life.
A complete assessment for capacity involves the evaluator collecting as much information
about the person as possible. The evaluator reviews the person’s medical history, current
physical and mental health, limitations, values, beliefs, interests and information from other
sources – such as family and caregivers.
Some questions that a health practitioner or evaluator may ask are:
• Is the person aware of the health issues that have prompted the recommendation?
• Is the person able to explain how the proposed treatment or admission can address their
needs?
• Is the person able to explain what can happen if they refuse treatment or admission?
• Are the person’s expectations realistic?
• Is the person able to make a decision and communicate a choice?
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