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Reference Articles > Health Care Consent Act,
1996
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This article discusses some highlights of the
Health Care Consent Act, 1996.
The Health Care Consent Act, 1996, provides
for a scheme of substitute decision making with
respect to the admission to a care facility (in Part
III) and with respect to personal assistance
services that are provided in long term care
facilities (in Part IV). Personal assistance
services (“PASs”) are defined in the Health Care
Consent Act, 1996 as assistance with the activities
of daily living, such as ambulation, nutrition,
washing, dressing etc in a nursing home or home for
the aged (section 2(1)). The portion of the Act that
deals with PASs closely parallels the section that
deals with medical treatment, however, it does not
express a requirement of consent in order for PASs
to be provided.
If an evaluator finds a person incapable of making
decisions with respect to a PAS, the persons’
substitute decision maker may make the decision or
decisions on his or her behalf. In some
circumstances, a person who is found incapable of
making decisions with respect to a PAS may apply to
the Consent and Capacity Board for a review of that
finding or to have a representative appointed to
make the required decisions.
Where consent is needed for the admission into a
care facility and the person is found to be
incapable with respect to the admission decision,
the substitute decision make may give or refuse that
consent on the person’s behalf and a recipient
found to be incapable may have decisions made by his
or her substitute decision maker².
The short-lived Consent to Treatment Act, 1992
codified many common law principles regarding
consent to treatment. The Health Care Consent
Act, 1996³ built on this concept of
self-determination and prohibiting the overriding of
competent wishes, except in extremely narrow
circumstances where the outcome would be different
than would have been expected when the wish was
expressed4 . These two statutes created a
statutory framework for procuring consent of an
incapable person through a substitute decision maker
and outlined the principles for giving consent.
The Health Care Consent Act, 1996 outlines in
section 10 that no treatment shall be administered
without consent, provides in section 11 the elements
of consent and the definition of informed consent,
sets out in section 20 the criteria for the
selection of a substitute decision maker and, in
section 21, establishes the principles for giving or
refusing consent by a substitute decision maker.
Section 22 mandates that before giving or refusing
consent the substitute decision maker is entitled to
receive all the information that the incapable
person would be entitled to receive in section 11(2)
in order for the consent to be informed.
Certain types of decisions are covered by the
Health Care Consent Act, 1996 - such as,
treatment, admission to a nursing home or home for
the aged, or personal assistance service in a
nursing home or home for the aged. If the decision
required is one covered by this Act, the authority
passes to the attorney for personal care to make
that decision when the grantor has been found
incapable under the Health Care Consent Act, 1996.
Until that happens, the grantor continues to make
his or her own decisions.
The grantor may specify how his or her capacity is
to be determined for personal care decisions that do
not fall under the Health Care Consent Act, 1996.
If nothing is specified, it comes into effect when
the attorney for personal care decides that the
person who has made the power of attorney for
personal care is incapable of making the required
decision.
Under section 6 of the Health Care Consent Act,
1996, certain types of medical procedures are
specifically excluded from the Health Care
Consent Act, 1996 and such procedures are
governed by the common law. These procedures include
a procedure whose primary purpose is research and
the removal of tissue for purposes such as organ
transplant. As sterilization that is not medically
necessary for the protection of the person’s health
is not permitted at common law, this procedure can
only be performed (if not for medically necessary
reasons) if the person is capable of giving consent
and, in fact, gives informed, voluntary consent.
If the person is not capable of giving consent, the
Health Care Consent Act, 1996 sets out a
hierarchy of others who could give consent. Topping
the list is a substitute decision maker appointed by
the court or under a power of attorney for personal
care. In their absence, the various levels of
next-of-kin, starting with spouses and working
through children and other relatives, are able to
make substitute decisions for personal care. The
Public Guardian and Trustee is the final decision
maker in the absence of any other authorized person.
Section 20(1) provides the hierarchy of substitute
decision makers as follows:
List of persons who may give or refuse consent
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:
-
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.
The substitute decision maker must be at least
sixteen years old unless the patient is his or her
child. Custodial parents rank ahead of non-custodial
parents. A parent barred by court order or
separation agreement from seeing the child or making
his or her treatment decisions may not participate
in treatment decisions. Two persons are not
considered to be spouses if they are living separate
and apart as defined by divorce law. Two persons are
common law spouses if they are of the opposite sex
and they live as man and wife but are not married
and one of the following applies to them: they are
lived together for at least a year, they are the
parents of a child, or they have made a legal
cohabitation agreement under the Family Law Act5.
Two persons are considered to be partners if they
have lived together for at least a year and have a
close personal relationship that is of primary
importance in both of their lives.
The highest ranking person on the list who is
available, capable and willing to make the decision
becomes the substitute decision maker for the
incapable person for that particular decision. A
person is considered available if it is possible for
them within a reasonable time, to communicate with
the person to obtain consent or refuse a treatment.
It is up to the health practitioner to decide if a
potential substitute decision maker is incapable of
making the required decision. If this happens, then
the next person on the list becomes eligible. There
is no appeal from the health practitioner’s opinion.
If no one qualifies on that hierarchal list then the
Public Guardian and Trustee steps in as that
person’s substitute decision maker for treatment. In
addition, the Public Guardian and Trustee will be
required to make treatment decisions:
(a) if no other qualified person is available and
willing to act; or
(b) if there are two or more qualified substitute
decision makers of equal rank who are giving
conflicting direction to the health practitioner.
This substitute decision maker of last resort cannot
be refused by the person. The legislation cannot be
overridden and steps cannot be taken to block the
Public Guardian and Trustee from being the person’s
substitute decision maker if the person does not
have anyone that he or she can appoint a substitute
decision maker. This provision is one of the few
mandatory statutory limitations and serves to ensure
that a person always has a substitute decision maker
that is independent of the persons providing care to
him or her.
For more information on estate, trust, powers of
attorney or guardianship topics please see
accompanying articles. Remember these articles are
provided for information only and are not meant to
be legal advice. Please consult with a professional.
____________________________________________
R.S.O. 1990, c.F.3
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