Advance Care Planning
A generic term used across many jurisdictions to describe the process of planning by an individual for a time when he or she no longer has the mental capacity to make decisions about health care. Advance care planning is comprised of two elements:
(1) Selection of the individual who will make decisions for the patient in the event the patient becomes incapable (sometimes referred to as a “Proxy Directive,” as the patient is designating their proxy decision-maker – referred to as the SDM in the HCCA); and,
(2) Expression of wishes, values, and beliefs about future health care decisions to be made in the event the patient becomes incapable (sometimes referred to as the “Instructional Directive,” as the patient is giving instructions about future care – referred to as “wishes” in the HCCA).
Advance Directive
A generic term used in Ontario to refer to specific communications from patients containing the patient’s express wishes regarding health care choices in the future. In the HCCA, these wishes may be communicated orally, in writing, or by alternative means. However, in many other jurisdictions this phrase refers instead to a formal document providing directions to a health practitioner and substitute decision-maker. The term “Advance directive” is also sometimes used beyond the expression of wishes, values, and beliefs (instructional directives) to refer to the designation of a substitute decision-maker (a proxy directive). Under the SDA and HCCA, a proxy directive would be a power of attorney for personal care designated an attorney for personal care. A power of attorney for personal care may also include wishes, values and beliefs.
Agent
A legal term used in this Paper, in the broadest sense, to refer to the individual appointed by the patient to make health care decisions on the patient’s behalf. Under the HCCA, the patient’s agent would be his/her SDM.
Assessor (commonly referred to as a “Capacity Assessor”)
Means a member of the:
1. College of Physicians and Surgeons of Ontario.
2. College of Psychologists of Ontario.
3. Ontario College of Social Workers and Social Service Workers and holding a certificate of registration for social work.
4. College of Occupational Therapists of Ontario.
5. College of Nurses of Ontario and holding a general certificate of registration as a registered nurse or an extended certificate of registration as a registered nurse,
who has complied with the requirements set out in regulation, as quoted below:
Persons qualified to do assessments of capacity
2. (1) A person is qualified to do assessments of capacity if he or she,
(a) satisfies one of the conditions set out in subsection (2);
(b) has successfully completed the qualifying course for assessors described in section 4;
(c) complies with section 5 (continuing education courses);
(d) complies with section 6 (minimum annual number of assessments); and
(e) is covered by professional liability insurance of not less than $1,000,000, in respect of assessments of capacity, or belongs to an association that provides protection against professional liability, in respect of assessments of capacity, in an amount not less than $1,000,000. O. Reg. 460/05, s. 2 (1).
(2) The following are the conditions mentioned in clause (1) (a):
1. Being a member of the College of Physicians and Surgeons of Ontario.
2. Being a member of the College of Psychologists of Ontario.
3. Being a member of the Ontario College of Social Workers and Social Service Workers and holding a certificate of registration for social work.
4. Being a member of the College of Occupational Therapists of Ontario.
5. Being a member of the College of Nurses of Ontario and holding a general certificate of registration as a registered nurse or an extended certificate of registration as a registered nurse. O. Reg. 460/05, s. 2 (2).
(3) The requirement that the person hold a general certificate of registration as a registered nurse or an extended certificate of registration as a registered nurse, as set out in paragraph 5 of subsection (2), does not apply to a member of the College of Nurses of Ontario who, on November 30, 2005, is qualified to do assessments of capacity under Ontario Regulation 293/96 (Capacity Assessment) made under the Act. O. Reg. 460/05, s. 2 (3).
(4) Clause (1) (b) does not apply to a person who, on November 30, 2005, is qualified to do assessments of capacity under Ontario Regulation 293/96 (Capacity Assessment) made under the Act. O. Reg. 460/05, s. 2 (4). [435]
Attorney for Personal Care
An attorney under a power of attorney for personal care given under the Substitute Decisions Act, 1992.[436]
Best Interests
The HCCA sets out the following considerations that must be considered as part of determining the patient’s best interests:
21(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,
(a) 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;
(b) 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
(c) the following factors:
1. Whether the treatment is likely to,
i. improve the incapable person’s condition or well-being,
ii. 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.
2. Whether the incapable person’s condition or well-being is likely to improve, remain the same or deteriorate without the treatment.
3. Whether the benefit the incapable person is expected to obtain from the treatment outweighs the risk of harm to him or her.
4. Whether a less restrictive or less intrusive treatment would be as beneficial as the treatment that is proposed.[437]
Capacity
Under the HCCA, a person is capable with respect to treatment, admission to a care facility or personal assistance ser