How is a substitute decision-maker supposed to know what the rules are in the HCCA?
Health Care vs Other Personal Care Decisions
Personal Care decisions can be broadly divided into two categories:
Health care (decisions to which the HCCA applies); and
All other personal care decisions (to which the SDA applies).
The Health Care Consent Act
The HCCA authorizes decisions respecting health care treatment, admission to long-term care, and personal assistance services for
both capable and incapable persons.
With respect to treatment, the starting point is a prohibition on any health practitioner administering treatment unless proper consent
has been obtained. Section 10 of the HCCA states this as follows:
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.
Did You Know?
The HCCA defines a “health practitioner” in section 2 as: “a member of a College under the Regulated Health Professions Act,
1991 or a member of a category of persons prescribed by the regulations as health practitioners.”
Capable individuals must consent to their own treatment. Incapable individuals cannot consent to their own treatment.
Section 2 of the HCCA defines treatment as:
“treatment” means anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other healthrelated
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.
“plan of treatment” is also defined as 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.
As you can see from that broad definition, many things but not everything can be considered treatment.
Time to Ponder
What do you think the legislature meant by including “withholding” of treatment in the definition of a plan of treatment?
Did You Know?
Consent by a patient and substitute consent by a substitute decision-maker are covered in part II of the HCCA.
Admission to long-term care facilities is covered in part III.
Personal assistance services are covered in part IV and refers to individuals receiving care services in long-term care
facilities and retirement homes.
The Substitute Decisions Act
Personal care under the SDA is dealt with in part II of that act and applies to a broader range of decisions than the HCCA. Recall from
the previous module that this act permits individuals to appoint attorneys for personal care (through a power of attorney for personal
care) or for the appointment of guardians of personal care, either of which can then make decisions for incapable individuals.
Section 45 of the SDA outlines that personal care includes decisions concerning “health care, nutrition, shelter, clothing, hygiene or
safety.” Some of these areas of decision making could be made by a substitute decision maker other than an attorney for personal
care or guardian of personal care under the SDA as illustrated in the following table.
Overlapping Jurisdiction of HCCA and SDA
SDA jurisdiction only Both SDA and HCCA jurisdiction
health care both as defined in the HCCA and heath
care that does not meet the definition of treatment
under the HCCA
treatment as defined in the HCCA
nutrition nutrition provided through a personal assistance service as defined in the
HCCA
shelter Consent to an admission to a long-term care facility
clothing clothing assistance provided through a personal assistance service as
defined in the HCCA
hygiene hygiene assistance provided through a personal assistance service as
defined in the HCCA
safety safety assistance provided through a personal assistance service as
defined in the HCCA
Capacity to Make Personal Care Decisions
Both the HCCA and the SDA set out a cognitive and functional test for capacity to make decisions that these respective acts apply to
as follows:
HCCA SDA
Capacity
Subsection 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.
Incapacity for personal care
Section 45: A person is incapable of personal care if the person
is not able to understand information that is relevant to making a
decision concerning his or her own health care, nutrition, shelter,
clothing, hygiene or safety, or is not able to appreciate the
reasonably foreseeable consequences of a decision or lack of
decision.
These tests have the same features and are considered by tribunals and courts using the same principles established in the commonlaw
from both statutes.
Key Point
Every word of legislation is important. Note that the test under the HCCA includes the word “and” between the “understand” and the
“appreciate” elements while the test under the SDA includes the word “or”.
In both cases capacity requires both elements and, in other words, failure with respect to one element of the test results in
incapacity.
Understanding the Information
This is the first part of the personal care capacity test.
Recall from the last module that the Supreme Court of Canada confirmed in the important case of Starson and Swayze at paragraph
78 that: “First, a person must be able to understand the information that is relevant to making a treatment decision. This requires the
cognitive ability to process, retain and understand the relevant information.”
Symptoms that might suggest a deficiency in this part of the test could include:
poor memory
confusion;
delirium.
This criterion is often more easily identified than for the second part of the capacity test.
Appreciating the Reasonably Foreseeable Consequences
This is the second part of the personal care capacity test.
The second part of the capacity test requires the person to have the ability to appreciate the reasonably foreseeable consequences of
the decision or lack thereof. The challenging part of assessing this second criterion, is the ambiguity in identifying what “appreciation”
requires and defining the “reasonably foreseeable consequences” of the decision.
This second part of the capacity test was where the real dispute was in the Starson v. Swayze case. The Supreme Court ultimately
concluded that Professor Starson was capable of making the treatment decision. The Court dealt with the challenging second part of
the capacity test as follows:
80 Secondly, the Act requires a patient to have the ability to appreciate the consequences of a decision. It does not
require actual appreciation of those consequences. The distinction is subtle but important: see L. H. Roth, A. Meisel and
W. Lidz, “Tests of Competency to Consent to Treatment” (1977), 134 Am. J. Psychiatry 279, at pp. 281–82, and
Weisstub Report, supra, at p. 249. In practice, the determination of capacity should begin with an inquiry into the patient’s
actual appreciation of the parameters of the decision being made: the nature and purpose of the proposed treatment; the
foreseeable benefits and risks of treatment; the alternative courses of action available; and the expected consequences of
not having the treatment. If the patient shows an appreciation of these parameters – regardless of whether he weighs or
values the information differently than the attending physician and disagrees with the treatment recommendation – he has
the ability to appreciate the decision he makes: see Roth, Meisel and Lidz, supra, at p. 281.
81 However, a patient’s failure to demonstrate actual appreciation does not inexorably lead to a conclusion of
incapacity. The patient’s lack of appreciation may derive from causes that do not undermine his ability to appreciate
consequences. For instance, a lack of appreciation may reflect the attending physician’s failure to adequately inform the
patient of the decision’s consequences: see the Weisstub Report, supra, at p. 249. Accordingly, it is imperative that the
Board inquire into the reasons for the patient’s failure to appreciate consequences. A finding of incapacity is justified only if
those reasons demonstrate that the patient’s mental disorder prevents him from having the ability to appreciate the
foreseeable consequences of the decision.
The Supreme Court’s decision in Starson v. Swayze reflects one of these key principles in capacity law, which is the right of capable
people to make decisions for themselves, even bad ones. In essence the court set out the elements of a treatment capacity inquiry as
follows:
Examine the patient’s actual appreciation of the consequences of the treatment decision and other relevant information. If the
patient demonstrates actual appreciation of the consequences than the patient is capable;
Then, if the patient does not demonstrate actual appreciation of the consequences,
Explore whether there is some other explanation for the lack of appreciation other than the patient not having the “ability” to
appreciate them. The most obvious example of another explanation is if the patient had not received information identifying the
consequences of a treatment such as a certain side-effect.
Time to Ponder
Professor Starson was the patient at the centre of the Starson v. Swayze case. His psychiatrist Dr. Swayze prescribed medications
to treat symptoms of mania. Professor Starton declined them. Professor Starson agreed that the medications might address his
mania, but he did not want them because they would also interfere with his academic work. Dr. Swayze said that Professor Starson
was incapable.
For more of a policy question, when do you think that an individuals’ capable decisions should be overruled?
Consent Must Be Informed
Did You Know?
Key to both the process for obtaining consent and assessing capacity to make a personal care decision is that the relevant
information must be communicated to the patient.
If the patient does not have relevant information the consent from that patient would not be valid. Also, to determine that a patient is
incapable, the relevant information must have been given (or attempted to have been given) to the patient.
The HCCA sets out the most explicit requirements for substitute consent under that act as follows:
Elements of consent
11 (1) The following are the elements required for consent to treatment:
The consent must relate to the treatment.
The consent must be informed.
The consent must be given voluntarily.
The consent must not be obtained through misrepresentation or fraud.
Poll:
Do you agree with Dr. Swayze’s assessment of Professor Startson’s treatment capacity?
Click-n-Reveal:
Click to see the court decision
Informed consent
(2) A consent to treatment is informed if, before giving it,
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
the person received responses to his or her requests for additional information about those matters.
Same
(3) The matters referred to in subsection (2) are:
The nature of the treatment.
The expected benefits of the treatment.
The material risks of the treatment.
The material side effects of the treatment.
Alternative courses of action.
The likely consequences of not having the treatment.
Time to Ponder
The SDA does not include a comparable informed consent list. Informed consent is still required, however, due to the common law.
Consider, for example, that a personal support worker might be hired to provide clothing- and hygiene-related service for an
incapable person in a private home. Any dispute about whether the personal support worker injured the incapable person might be
dealt with in private law suit for a battery. The tort of battery would be dealt with based on the following test:
A battery is the intentional infliction of unlawful force on another person. Consent, express or implied, is a defence to
battery… However, the consent must be genuine; it must not be obtained by force or threat of force or be given under
the influence of drugs. Consent may also be vitiated by fraud or deceit as to the nature of the defendant’s conduct. The
courts below considered these to be the only factors that would vitiate consent. (Nelitz v. Dyck at paragraph 36).
As you can see, the SDA requirements for a consent defence of a battery claim are similar to some of the elements necessary for
informed consent in the HCCA.
Identifying the Substitute Decision Maker
It is the obligation of the treatment provider or person admitting into long-term care of obtaining valid consent. Consent is only valid if it
is obtained from the highest ranked decision-maker.
There are two steps necessary to identify the appropriate person for an HCCA decision.
Step 1:
Look to the hierarchy.
The HCCA, helpfully provides a ranking hierarchy of substitute decision makers as follows:
The incapable person’s guardian of the person, if the guardian has authority to give or refuse consent to the treatment.
The incapable person’s attorney for personal care, if the power of attorney confers authority to give or refuse consent to the
treatment.
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.
The incapable person’s spouse or partner.
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.
A parent of the incapable person who has only a right of access.
A brother or sister of the incapable person.
Any other relative of the incapable person.
Only the highest ranked decision maker has authority to make a treatment decision provided they meet the other requirements of the
act (HCCA subsection 20(3)).
Step 2:
Confirm that the highest-ranked decision maker otherwise meets the requirements of making the decision.
Note that the top 3 highest-ranked decision makers can only make decisions if they have “authority to give or refuse consent to the
treatment.” This is a function of the appointment process for each of these positions. Before you accept someone’s authority, it is
important to confirm that the document appointing them actually grants the decision-making power. Do this by requesting a copy of
the document and reading it.
The additional requirements applicable to all decision makers are as follows:
Substitute decision makers must be capable with respect to the particular treatment themselves (HCCA subsection 20(2)(a)).
Substitute decision makers must be at least 16 years old, unless he or she is the incapable person’s parent (HCCA subsection
20(2)(b)).
Substitute decision makers must not be prohibited by court order or separation agreement from having access to the incapable
person or giving or refusing consent on his or her behalf (HCCA subsection 20(2)(c)).
Substitute decision makers must be available, which means it is possible to obtain consent or refusal within a reasonable time in
the circumstances (HCCA subsection 20(2)(d) and Hiltz and Szigeti, 2018, pages 185 and 186).
Substitute decision makers must be willing to assume the responsibility of giving or refusing consent (HCCA subsection 20(2)(e).
If any of the above criteria are not met, the decision should be made by the next highest-ranked decision maker that does meet
all the criteria.
Did You Know?
The Public Guardian and Trustee (PGT) will make the decision if nobody meets the criteria (HCCA subsection 20(5)) or equallyranked
decision makers cannot agree (HCCA subsection 20(6)).
Obligations on Substitute Decision Makers
Making substitute personal care decisions for someone else is not simply a matter of making your own decision or making the decision
that you think the incapable person would have made if able. As noted earlier, a capable person is entitled to make decisions that are
not in his or her own best interests.
Substitute decisions are constrained by the principles in the HCCA (and the SDA). These principles help protect the vulnerable by
requiring that decisions on their behalf be made based on certain criteria.
The principles for making a treatment decision in the HCCA are specifically set out as follows:
Principles for giving or refusing consent
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:
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.
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.
Poll:
Do you think that religious doctrine is a consideration in making a treatment decision for an
incapable person?
Click-n-Reveal:
Click to see if you are right!
Best interests
(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,
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;
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
the following factors:
Whether the treatment is likely to,
improve the incapable person’s condition or well-being,
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.
Whether the incapable person’s condition or well-being is likely to improve, remain the same or deteriorate
without the treatment.
Whether the benefit the incapable person is expected to obtain from the treatment outweighs the risk of harm to
him or her.
Whether a less-restrictive or less-intrusive treatment would be as beneficial as the treatment that is proposed.
Summarizing the Principles for Substitute Decision Making Under the HCCA
Substitute decisions under the HCCA must be made in accordance with prior capable wishes applicable in the circumstances. Best
interests do not matter if there is a prior capable wish. If there is no prior capable wish the decision must be made in accordance with
the incapable person’s best interests as defined in the HCCA.
A similar hierarchy of considerations applies to long-term care admission (HCCA section 42); personal assistance services (HCCA
section 59); and for other personal care decisions (SDA subsections 66(3) and 66(4) for guardians of personal care and SDA section
67 for attorneys for personal care).
Challenging a Substitute Decision Maker
How can the authority of a substitute decision maker be challenged?
Guardians of Personal Care
The highest ranked decision maker (a court-appointed guardian of the person) can only be challenged by going to court to seek
direction removing that authority or directing the guardian to make a certain decision. Anybody could seek the court’s direction to do
this.
Attorneys for Personal Care
An attorney for personal care could also be challenged by going to court to have the attorney removed or directed to make a certain
decision. Anybody could seek the court’s direction to do this. Another option would be for the person that is incapable of making the
personal care decision to revoke the power of attorney for personal care if he or she is capable of doing that.
Family Members
The HCCA includes two applications to the Consent and Capacity Board that could be used to remove the authority of the family
decision makers.
Any person 16 years or older can apply to have a her or herself appointed as a representative for the purposes of making the
decision if the incapable person does not object, the representative is capable of making the decision and the appointment is in
the incapable person’s best interests (HCCA section 33).
Health practitioners can also apply to the Consent and Capacity Board for a determination of whether a decision made by a
substitute decision maker has been made in compliance with the rules for substitute decision making (HCCA section 37).
Click-n-Reveal:
How is a substitute decision-maker supposed to know what the rules are in the HCCA?
Summary
In this module, we reviewed what it means to be capable of making personal care decisions and the rules surrounding substitute
consent for personal care.
There are many misconceptions out there even in the regulated health professions about what the applicable rules are. It is helpful to
always start with reference to the HCCA or SDA, as applicable, when assisting someone with these personal care issues.
Key Points
The HCCA provides a regime for substitute decision making for everyone in Ontario regardless of whether there is a power of
attorney or guardianship of personal care.
The HCCA only applies to treatment as defined in that act and long-term care admissions and personal support services in longterm
care.
A power of attorney or guardianship of personal care (detailed in the next module) are necessary to make substitute decisions for
an incapable person beyond the limited areas covered by the HCCA.
A finding of incapacity by a health care provider (or person responsible for the long-term care decisions) must be made before
there can be substitute consent under the HCCA.
The HCCA sets out the ranking of potential substitute decision makers and the Public Guardian is the substitute decision-maker
of last resort.
Substitute decision makers must meet the criteria under the HCCA.
Consent to a HCCA decision must be informed and substitute decisions must be made based on the principles for decision
making under the HCCA.
The authority of a substitute decision maker can be removed with an application to court or the Consent and Capacity Board as
applicable or if the power of attorney for personal care is revoked.
Guidelines
Assignment: Health Care Substitute Decision Making
Study and reflect on a video presentation then submit a short report.
250 words
Direction Required
Reflecting on the material presented in this week’s module, please submit a short (around 250 words) description of the inaccuracies that you can identify in the video about the principles on substitute decision making as presented in the module.
Grades will be provided for:
4% for identifying the 4 inaccuracies in the video;
4% for descriptions of the correct principle of substitute decision making related to each of the 4 inaccuracies; and
2% for avoiding legal errors and erroneous terminology.
Note: The assignment is worth 20% of your course grade and must be
Please use the lecture note
Watch the video on You tube
3 scholarly refence from 2016-2020
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