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Consent & Capacity
The ability of a person to make their own decisions is called having capacity. Having capacity means the person is able to make “informed decisions.” According to the Health Care Consent Act, a person is said to have capacity when they:
It is important to note that the capacity to make decisions should not be confused with judgement. The issue is not whether a person is making a “good” decision, but whether they are able to make an informed decision after carefully weighing the pros and cons of the options available (Conversations About Decision Making, 2019).
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Consent & Capacity Resources & Links
There is no such thing as “global incapacity”: incapacity is determined on an issue by issue basis. For example, you may be capable to consent to one type of treatment, and not another, or be capable of treatment, but not capable to consent to admission to long-term care, and vice-versa. Further, capacity can fluctuate over time (Meadus, J, 2010).
Questions you might ask (EAPON, 2017):
- Has anyone told you that you are incapable of making decisions? If so, have you been assessed by a physician or capacity assessor?
- Do you have a Substitute Decision Maker or legal guardian?
- Have you prepared a Power of Attorney (POA) for Property and/or Power of Attorney for Personal Care?
- Do you have access to the documents?
- When was the last time you reviewed and/or updated your POA?
The information presented below is divided into four broad areas:
Legislation
When working in the social and health services sector there will be times when you will have questions around consent and capacity. it is important that you have working knowledge of the following legislative Acts:
Substitute Decision Makers
Everyone in Ontario has a Substitute Decision Maker (SDM) even if they have never prepared a Power of Attorney for Personal Care appointing someone to act in that role. The Health Care Consent Act includes a hierarchy of SDMs.
Substitute Decision Maker Resources & Links
- 25 Common Misconceptions About the Substitute Decisions Act and Health Care Consent Act
- Hierarchy of Substitute Decision Makers (SDMs) in the Health Care Consent Act
- A Guide to the Substitute Decisions Act
- Speak Up: Substitute Decision Maker Hierarchy in Ontario
- Advance Care Planning: Introducing the Substitute Decision Maker
Powers of Attorney
A Power of Attorney is a legal document that an individual can use to appoint another person (called an attorney) to make decisions on the individual’s behalf (Older Adults and the Justice System, 2020).
Continuing Power of Attorney for Property is a legal document that gives the attorney the legal authority to make decisions about an individual’s finances, home and possessions. A continuing power of attorney for property typically comes into force as soon as it is signed and witnessed. However, the older adult can also state in the power of attorney that it will come into effect at a later date. For example, when a designated capacity assessor makes a finding that the older adult is incapable of managing their own property (Older Adults and the Justice System, 2020).
Power of Attorney for Personal Care is a legal document that gives the attorney the legal authority to make personal care and treatment decisions for the individual if the individual becomes mentally incapable of making these decisions independently. Personal care decisions include decisions about the individual’s health care, medical treatment, diet, housing, clothing, hygiene and safety(Older Adults and the Justice System, 2020).
Did you know?
Anyone can ask a court to review whether an attorney is mismanaging an incapable person’s property
Capacity Assessments
Capacity Assessment is the formal assessment of a person’s mental capacity to make decisions about property and personal care (Ministry of the Attorney General, 2019).
If a person does not have a power of attorney and cannot make personal or financial decisions, another person may have to be given special legal authority to make decisions on their behalf. This authority is called guardianship. Before this authority is given, it must be determined that the person is mentally incapable. In certain circumstances which are detailed in the Substitute Decisions Act, a designated capacity assessor is the only professional authorized by law to make this decision (Ministry of the Attorney General, 2019).
An assessment of mental capacity for anything other than what is in the Substitute Decisions Act does not need to be performed by a designated capacity assessor. For example, many health care decisions fall under the Health Care Consent Act and can be made by a spouse, relative or other appointed person (Ministry of the Attorney General, 2019).
Before requesting any assessment – whether from a capacity assessor or other professional – it is important to be clear about the purpose of the capacity assessment, and whether it is actually necessary.
To check whether the assessment required should be done by a designated capacity assessor, you can contact the Capacity Assessment Office: Ministry of the Attorney General: 416-327-6424.
Assessing Capacity for Admission to a Long Term Care Home
Capacity Evaluation is the process of determining a person’s ability to make his/her own decision about admission to a long-term care home. It includes asking the person questions related to admission. It may be supplemented by tests or procedures to measure cognitive ability, but these are not the determinants of capacity (Cole J., Dawe, N, 2010).
The Local Health Integration Network (LHIN), Home and Community Care MUST do the evaluation of capacity of a person making the decision about admission to LTC. Do not seek a capacity assessor to overturn this decision. Do seek a higher ranked assessor or administrator within the LHIN to re-assess and provide reasons.
Assessing Capacity for Admission to a Long Term Care Home Resources & Links
Consent and Capacity Board
The Consent and Capacity Board (CCB) is an independent body created by the provincial government of Ontario under the Health Care Consent Act. It conducts hearings under the Mental Health Act, the Health Care Consent Act, the Personal Health Information Protection Act, the Substitute Decisions Act and the Mandatory Blood Testing Act (CCB, 2012-15).
With respect to the Health Care Consent Act, the CCB has the authority to hold hearings to deal with a review of capacity to consent to treatment, admission to a care facility or personal assistance service; a review of decision to admit an incapable person to a hospital, psychiatric facility or long term care home for the purpose of treatment; a review of an SDMs compliance with the rules for substitute decision making, among many others.
Resource for Health Practitioners
If a health practitioner thinks the older adult’s substitute decision-maker is not making decisions in the individual’s best interest, the health practitioner can apply to the Consent and Capacity Board (CCB) with a Form G. If the CCB decides the substitute decision-maker is not making decisions in the older adult’s best interest, the CCB will tell the substitute decision-maker how to make decisions in the individual’s best interest. If the substitute decision-maker does not follow these directions, the CCB may remove that person from being a substitute decision-maker (Older Adults and the Justice System, 2019).
Office of the Public Guardian and Trustee
The Office of the Public Guardian and Trustee (OPGT) is part of Ontario’s Ministry of the Attorney General.
Making Decisions About Personal Care, Treatment and Admission to Long Term Care:
Very occasionally the court will order the OPGT to make decisions of a personal nature for an incapable person in order to protect him or her from extreme physical risk.
The OPGT is also responsible for making decisions on behalf of incapable people when either medical treatment or admission to a long-term care facility is proposed and it is not possible to obtain informed consent from another authorized person, such as a relative who are available, capable and willing to do so (Ministry of the Attorney General 2019).
Investigations
The OPGT will conduct an investigation when it receives information that an individual may be incapable and at risk of suffering serious financial or personal harm and no alternative solution is available. An investigation may result in the OPGT asking the court for authority to make decisions on the person’s behalf on a temporary basis (Ministry of the Attorney General 2019).
Advance Care Planning
When working with your older adult clients, it is important to make Advance Care Planning a part of your work.
How Do I Describe Advance Care Planning to My Clients?
There are two parts to Advance Care Planning (ACPWW, 2015):
- Deciding who will make future health care decisions for you if you are unable to. This will be your Substitute Decision Maker (SDM).
- Having conversations with your SDM to share information about what’s important to you, your wishes, values and beliefs. This helps guide your SDM to make healthcare decisions that are based on what you would want.
Review with the older adult who their automatic SDM will be based on the hierarchy – a ranking list in the HCCA. If they do not wish to have their SDM based on the hierarchy, they will need to choose someone else by preparing a Power of Attorney for Personal Care.
In Ontario, as health care professionals you are required to obtain informed consent before providing any treatment or care. Consent must come from your client or from their SDM if the person is not mentally capable. Advance Care Planning conversations can help your clients and their loved ones be better prepared for making health care decisions in the future (ACPWW, 2015).
