This section describes the general law of consent to treatment, capacity with respect to treatment decisions, and substitute decision-making in Ontario.
A. Consent to Treatment
1. The Common Law
The common law has long established that health care practitioners must first obtain the consent of a patient before any treatment is provided. Consent may be obtained in either written or oral form, or may be assumed from a patient’s conduct. A failure to obtain consent from a patient or to disclose relevant information may lead to an action in battery. For example, in the case of Allan v. New Mount Sinai Hospital, the issue before the court was whether the plaintiff had consented to the administration of anaesthesia to her arm by the defendant anaesthetist, Dr. Hellman. Linden J. summarized the then common law of consent, and its application to the facts of that case, as follows:
The administration of an anaesthetic is a surgical operation. To do so would constitute a battery, unless the anaesthetist is able to establish that his patient has consented to it. …. An actual, subjective consent, however, is not always necessary if the doctor reasonably believes that the patient has consented. Thus, if a patient holds up an arm for a vaccination, and the doctor does one, reasonably believing that the patient is consenting to it, the patient cannot complain afterwards that there was no consent: O’Brien v. Cunard S.S. Co., Ltd. (1891), 28 N.E. 266. Silence by a patient, however, is not necessarily a consent. Whether a doctor can reasonably infer that a consent was given by a patient, or whether he cannot infer such consent, and must respect the wishes of the patient, as foolish as they may be, always depends on the circumstances.
While our Courts rightly resist advising the medical profession about how to conduct their practice, our law is clear that the consent of a patient must be obtained before any surgical procedure can be conducted. Without a consent, either written or oral, no surgery may be performed. This is not a mere formality; it is an important individual right to have control over one’s own body, even where medical treatment is involved. It is the patient, not the doctor, who decides whether surgery will be performed, where it will be done, when it will be done and by whom it will be done. Dr. Hellman, when told by Mrs. Allan not to use her left arm, had an obligation to comply with her wishes. If he thought it inadvisable, it was his duty to discuss the matter with her and try to convince her to change her mind. The expert evidence of Dr. Renwick was to the effect that this would be the usual thing to do. Dr. Hellman was not entitled to say that he knew what he was doing, and proceed to inject the needle into Mrs. Allan’s left arm contrary to her express wishes.
To be legally valid, the patient’s consent must also be informed: the consent must be obtained after the nature of the treatment has been explained to the patient and the patient has been advised of the risks involved and about any available alternatives to the proposed treatment. Informed consent requires that the patient be “given the proper time and environment in order to assess the information.”
A patient retains the ability to withdraw consent. Withdrawal of consent has been deemed to be valid when a patient is capable of understanding the nature and consequences of withdrawing consent. A health practitioner who continues to provide treatment after consent has been withdrawn may also be liable for battery.
The guiding principle at common law was, and continues to be, the concept of individual autonomy. Courts of different levels have repeatedly cited this concept, including the Ontario Court of Appeal decision in Malette v Shulman:
The doctrine of informed consent holds that no medical procedure may be undertaken without the patient’s consent, obtained after the patient has been provided with sufficient information to evaluate the risks and benefits of the proposed treatment and other available options. The doctrine presupposes the patient’s capacity to make a subjective treatment decision, based on her understanding of the necessary medical facts provided by the doctor and on her assessment of her own personal circumstances.
In 1980, the cases of Hopp v Lepp and Reibl v Hughes were heard by the Supreme Court of Canada and “had a monumental effect on consent litigation in Canada.” The decision of Hopp v Lepp clarified the standard of informed consent such that: “even if a certain risk is a mere possibility which ordinarily need not be disclosed, yet if its occurrence carries serious consequences, as for example, paralysis or even death, it should be regarded as a material risk requiring disclosure.” Thereafter, even remote risks of death had to be disclosed to patients.
In Reibl v Hughes, the patient had consented to undergo elective surgery, namely an endarterectomy to reduce future risk of stroke, but this consent was not informed. The Supreme Court established that, since the plaintiff had consented, the plaintiff could not sue for assault and battery, but could sue in negligence. The Court reasoned that, in essence, the allegation against the physician was that the consent had been obtained negligently – by not providing the information that was pertinent, including the possibility of stroke arising from the elective surgery. The result of this decision was that the plaintiff was required to prove causation on the negligence standard, which asks “what the average reasonable person in the patient’s position would have done in the circumstances.” The plaintiff, Mr. Reibl, was clear that had he been provided with the appropriate information, he would have foregone the elective surgery until such time as his retirement pension vested a year and a half later.
In the very recent Supreme Court of Canada decision in Cuthbertson v. Rasouli (“Rasouli”), McLachlin, C.J., writing for the majority of the Court reviewed the established common law backdrop in Ontario for consent to treatment:
At common law, medical caregivers must obtain a patient’s consent to the administration of medical treatment: Reibl v. Hughes,  2 S.C.R. 880; Hopp v. Lepp,  2 S.C.R. 192. The physician cannot override the patient’s wishes to be free from treatment, even if he believes that treatment is in the vital interests of the patient. The patient’s consent must be given voluntarily and must be informed, which requires physicians to ensure the patient understands the nature of the procedure, its risks and benefits, and the availability of alternative treatments before making a decision about a course of treatment. The requirement for informed consent is rooted in the concepts of an individual’s right to bodily integrity and respect for patient autonomy: see Fleming v. Reid (1991), 4 O.R. (3d) 74 (C.A.).
The common law of consent to medical treatment works well for patients who have the capacity to decide on consent to treatment, in the sense of being able to understand the nature, purpose, and consequences of the proposed treatment. The patient’s autonomy interest — the right to decide what happens to one’s body and one’s life — has historically been viewed as trumping all other interests, including what physicians may think is in the patient’s best interests.
However, the traditional common law approach to medical treatment is more problematic when a patient is incapable of appreciating the nature, purpose, and consequences of the proposed treatment. As explained in Malette v. Shulman (1990), 72 O.R. (2d) 417 (C.A.), at pp. 423-24, the common law doctrine of informed consent “presupposes the patient’s capacity to make a subjective treatment decision based on her understanding of the necessary medical facts provided by the doctor and on her assessment of her own personal circumstances”. When such capacity is lacking, the patient is not in a position to exercise his autonomy by consenting to or refusing medical treatment.
If a patient is incapable, disputes over consent to treatment at common law are resolved in the courts. The focus shifts from the patient’s autonomy interest, which is compromised or extinguished, to whether receiving treatment is in the best interests of the patient. In emergency situations, where treatment is necessary to save the life or preserve the health of an incapable patient, treatment may be provided without consent: Malette, at p. 424. In non-emergency situations, treatment may be authorized by a court, acting under its parens patriae jurisdiction, or in the case of an incapable minor, by the child’s parents or legal guardian. See e.g. E. (Mrs.) v. Eve,  2 S.C.R. 388; B. (R.) v. Children’s Aid Society of Metropolitan Toronto,  1 S.C.R. 315, at para. 83; Re S.D.,  3 W.W.R. 618 (B.C. S.C.), at p. 629.
The Supreme Court’s decision in Rasouli will be discussed in more detail below. It is important to note the difficulties identified by the Supreme Court that arise at common law where a patient is incapable of consenting to treatment. In order to resolve many of these difficulties, the procedures for decision-making on behalf of incapable patients are now almost exclusively set out by statute in Ontario, as discussed below.
Just as consent to treatment cannot be obtained in an informational vacuum, patients cannot give informed consent to treatments that have not yet been proposed by a health practitioner. While the law of consent to treatment addresses the information that must be provided to a patient about a proposed treatment, it is primarily the law of professional negligence (and misconduct) that addresses what treatments must be proposed. Under the rubric of the applicable standard of care, the law states that:
[e]very medical practitioner must bring to his or her task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. He or she is bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the same experience and standing.
The selection of treatments to be proposed to patients is an issue of professional judgment by the health practitioner, to be reviewed on the basis of applicable professional standards. Informed consent to treatment necessarily involves two decisions: the health practitioner exercising professional judgment to determine what treatment options to raise with the patient, and the patient deciding which treatment option will be consented to once the risks and benefits of treatment have been disclosed (and also deciding if any treatment options that have not been proposed by the health practitioner will be requested).
2. The Health Care Consent Act, 1996
In Ontario, consent to health care and related services is governed by the HCCA. This Paper focuses on the law of consent to “treatment” as that term is defined in the HCCA. A similar, but not identical, framework exists in the HCCA for consent to personal assistance services in long-term care homes and admission to care facilities (defined as long-term care homes).
(b) Consent to Treatment
Similar to the common law, the HCCA specifies that a health practitioner may not administer treatment unless the patient or his/her SDM has provided consent. This consent may be in writing or provided orally, and may be express or implied in the circumstances. The HCCA provides that consent to treatment will only be valid if:
- The consent relates to the treatment.
- The consent is informed.
- The consent is given voluntarily.
- The consent is not obtained through misrepresentation or fraud.
The HCCA codifies the common law test that informed consent requires disclosure of matters that a reasonable person in the same circumstances would require in order to make a decision about the treatment. The HCCA further particularizes the “matters” about which the patient must receive disclosure:
- 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.
A health practitioner is entitled to presume that consent to treatment includes consent to reasonable variations or changes in the treatment provided there is no “significant change” to the “matters” referred to above, and it is not unreasonable to form this presumption.
Consent to treatment or a plan of treatment may be withdrawn at any time by either the patient or if incapable, his/her SDM.
The HCCA permits consent to be given for future treatments that have not yet been proposed to the patient by the treating health care team, provided those treatments are part of a “plan of treatment”. A plan of treatment is 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.
Most notably, the ability to consent to treatment not presently proposed for the patient must be tied to the patient’s current health condition and the future health problems his/her current condition makes likely. In this respect, the HCCA limits consent to treatment to time-limited and contextualized decisions, grounded in the patient’s current health condition.
In the experience of ACE and DDO, health practitioners are sometimes unfamiliar with the nuances of the statutory provisions that permit patients to give informed consent to a plan of treatment, particularly where the plan of treatment includes the withholding or withdrawal of life-sustaining interventions. As will be discussed in more detail below, it appears that the HCCA plan of treatment provisions are underutilized. For example, they could be employed to address needed treatment adjustments (such as middle of the night treatment changes) while still respecting the right of the patient or SDM (if incapable) to give or refuse consent to treatment and be advised of the risks and benefits of the proposed treatment. We should note that some middle of the night treatment changes would not require a new consent (even in the absences of a plan of treatment), so long as the nature, risks, side effects, and benefits of the treatment changes are not significantly different than the treatment consented to.
Consent to treatment is intended to be a continuous process, not a single paper form. Consent must be continuously considered and obtained through discussions with the patient or SDM. A scenario commonly encountered by the authors is where a written consent exists (or is documented in the patient’s health record from another health care organization); and the current health care team erroneously believes it cannot revisit or reconfirm the consent. While consents for particular treatments or plans of treatment can be recorded in writing, consent must always be grounded in contextualized discussions with a person. Prior consents to treatment may always be revisited or reconfirmed with patients (or if incapable their SDMs) where there is a concern that it may no longer be applicable.
Beneath the relative clarity of the requirement to obtain informed consent for proposed treatment, there has been significant litigation regarding end-of-life treatments. In Rasouli, the treating physicians for a patient who underwent brain surgery and who was initially in a persistent vegetative state (later upgraded to minimally conscious) took the position that the withdrawal of life support that was of no medical benefit to the patient was not “treatment” under the HCCA – and as such they were not required to obtain consent to withdraw life support. This case hinged on the definition of “treatment” under the HCCA:
“treatment” means anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other health-related 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. [Emphasis added]
Ultimately, the majority of the Supreme Court of Canada decided that the removal of life support constitutes treatment as it would be done for a “health-related purpose.” The majority explained its ruling as follows:
In summary, withdrawal of life support aims at the health-related purpose of preventing suffering and indignity at the end of life, often entails physical interference with the patient’s body, and is closely associated with the provision of palliative care. Withdrawal of life support is inextricably bound up with care that serves health-related purposes and is tied to the objects of the Act. By removing medical services that are keeping a patient alive, withdrawal of life support impacts patient autonomy in the most fundamental way. The physicians’ attempt to exclude withdrawal of life support from the definition of “treatment” under s. 2(1) of the HCCA cannot succeed.
It is important to note that the ratio of this decision may not apply to all other cases involving the withdrawal of medical interventions or treatment. The McLachlin, C.J. was careful to limit the scope of the majority decision:
These considerations lead me to conclude that “treatment” in the HCCA should be understood as extending to withdrawal of life support in the situation at issue here and as that process is described in these proceedings. This case does not stand for the proposition that consent is required under the HCCA for withdrawals of other medical services or in other medical contexts.
Given the broad interpretation of “health-related purpose” under the HCCA in Rasouli, the reasoning of the Supreme Court would appear to be equally applicable in the context of the withdrawal of other treatments. However, the above paragraph of the majority decision suggests otherwise. At present, the applicability of Rasouli beyond the withdrawal of life support remains unclear.
(c) Emergency Treatment
With limited exceptions, in an emergency health practitioners may provide treatment without consent. Importantly, the HCCA does not provide that consent to treatment will be implied in an emergency. Consent is simply not required before providing emergency treatment. However, health practitioners cannot provide treatment, even in an emergency, if they are aware that a patient who is 16 years or older expressed a wish while capable to refuse the treatment (and, if the patient is capable at the time of the emergency, health practitioners cannot provide treatment if they are of the opinion that there is a reason to believe the patient does not want the treatment).
The health practitioner is not obliged to blindly follow any prior wish relative to the proposed treatment in an emergency. Health practitioners should use judgment in determining whether a prior capable wish is applicable to the emergency treatment proposed; they are protected from liability where they provide emergency treatment without consent in good faith. Similarly, where an SDM refuses treatment in an emergency on behalf of an incapable patient, and the health practitioner is of the opinion that the SDM has not complied with his/her obligations, discussed below, the health practitioner may provide treatment despite the refusal.
This exception to the requirement to obtain consent does not apply in all circumstances where the patient is in peril. This exception applies only when a capable patient is unable to communicate, or (for an incapable patient) there would be undue delay in speaking with an incapable patient’s SDM to obtain consent. Once this exception no longer applies, the health practitioner is required to obtain consent to treatment in the usual course from a patient or SDM.
Even where this exception initially applies, treatment can only be continued until the patient can communicate or the SDM is located. The health practitioner is required to take reasonable steps to enable communication or to locate the SDM.
(d) Consent to Admission to a Care Facility
As noted above, the HCCA also contains provisions governing the admission of a person to a “care facility”, a term defined in the act as a long-term care home, or any other facility prescribed by regulation. There are no other facilities prescribed by regulation as a care facility at this time.
The HCCA prescribes the process for admission to a care facility where the person is incapable and their consent is otherwise required. The Long-Term Care Homes Act, 2007 specifies that consent is required for admission, and also contains consent provisions mirroring those applicable to treatment under the HCCA.
Similar to the provisions for emergency treatment, in a “crisis” the HCCA permits admission to a care facility without the consent of the patient where the patient has been found incapable by an evaluator, and the person authorizing admission to the care facility forms the opinion that the incapable patient requires immediate admission and it is not reasonably possible to obtain consent. In these circumstances, the person responsible for admission to the care facility must seek consent from the patient’s SDM after admission.
(f) Consent to Personal Assistance Services
Similar to admission to a care facility, the HCCA contains provisions governing capacity and substitute consent with regard to “personal assistance services”, a defined term meaning:
assistance with or supervision of hygiene, washing, dressing, grooming, eating, drinking, elimination, ambulation, positioning or any other routine activity of living, and includes a group of personal assistance services or a plan setting out personal assistance services to be provided to a person, but does not include anything prescribed by the regulations as not constituting a personal assistance service.
These provisions are only applicable to personal assistance services provided in a long-term care home.
B. Capacity to Consent or Refuse Treatment
1. Test for Capacity
In Ontario, all persons are presumed to be capable to make decisions with respect to treatment, admission to a care facility, and personal assistance services. Health practitioners may rely on this presumption of capacity unless they have reasonable grounds to believe that the person is incapable. They are also protected from liability under the HCCA if they make this (and other) decisions under the HCCA on reasonable grounds and in good faith.
The importance of making treatment decisions for oneself, and the competing interest of protecting those patients who lack capacity, was recognized by the Supreme Court of Canada in the seminal case of Starson v. Swayze:
The right to refuse unwanted medical treatment is fundamental to a person’s dignity and autonomy. This right is equally important in the context of treatment for mental illness: see Fleming v. Reid 1991 CanLII 2728 (ON CA), (1991), 4 O.R. (3d) 74 (C.A.), per Robins J.A., at p. 88:
Few medical procedures can be more intrusive than the forcible injection of powerful mind-altering drugs which are often accompanied by severe and sometimes irreversible adverse side effects.
Unwarranted findings of incapacity severely infringe upon a person’s right to self-determination. Nevertheless, in some instances the well-being of patients who lack the capacity to make medical decisions depends upon state intervention: see E. (Mrs.) v. Eve, 1986 CanLII 36 (SCC),  2 S.C.R. 388, at p. 426. The Act aims to balance these competing interests of liberty and welfare: see B. F. Hoffman, The Law of Consent to Treatment in Ontario (2nd ed. 1997), at p. 3….
Capacity is defined under the HCCA as a two-part concept, relating to both the ability to understand relevant information, and the ability to appreciate the reasonably foreseeable consequences of a decision or lack of a decision. Both requirements must be satisfied in order for the patient to be capable:
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. 
Capacity is not a global condition of the patient, but instead depends on each proposed treatment put to the patient for a decision by a health practitioner. The HCCA recognizes that capacity for a particular treatment decision may change over time and that, with the return of capacity, the decision of the now capable patient governs.
The Supreme Court of Canada explained the intricacies of the test for capacity in Starson, and specifically noted that capacity did not require that the patient either agree with his diagnosis, or that the patient’s decision be in keeping with his own best interests:
….Capacity involves two criteria. 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. There is no doubt that the respondent satisfied this criterion. Second, a person must be able to appreciate the reasonably foreseeable consequences of the decision or lack of one. This requires the patient to be able to apply the relevant information to his or her circumstances, and to be able to weigh the foreseeable risks and benefits of a decision or lack thereof. The Board’s finding of incapacity was based on their perception of Professor Starson’s failure in this regard.
Before turning to an analysis of the reviewing judge’s decision, two important points regarding this statutory test require comment. First, a patient need not agree with the diagnosis of the attending physician in order to be able to apply the relevant information to his own circumstances. Psychiatry is not an exact science, and “capable but dissident interpretations of information” are to be expected: see Weisstub Report, supra, at p. 229. While a patient need not agree with a particular diagnosis, if it is demonstrated that he has a mental “condition”, the patient must be able to recognize the possibility that he is affected by that condition. Professor Weisstub comments on this requirement as follows (at p. 250, note 443):
Condition refers to the broader manifestations of the illness rather than the existence of a discrete diagnosable pathology. The word condition allows the requirement for understanding to focus on the objectively discernible manifestations of the illness rather than the interpretation that is made of these manifestations.
As a result, a patient is not required to describe his mental condition as an “illness”, or to otherwise characterize the condition in negative terms. Nor is a patient required to agree with the attending physician’s opinion regarding the cause of that condition. Nonetheless, if the patient’s condition results in him being unable to recognize that he is affected by its manifestations, he will be unable to apply the relevant information to his circumstances, and unable to appreciate the consequences of his decision.
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 C. 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.
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. [Emphasis in original]
A health practitioner proposing treatment has an obligation to determine whether the patient is capable or incapable of consenting to the proposed treatment.
Where a patient has been found to be incapable under the HCCA, the health practitioner shall give the patient rights information about the consequences of the finding of incapacity as specified by the governing body of the health practitioner’s profession. For example, the College of Physicians and Surgeons of Ontario’s policy on Consent to Medical Treatment provides the following guidance to physicians on the information that should be communicated to the incapable patient:
Even when there is a substitute decision-maker, a physician must still involve the patient. The College advises the physician to take the following steps:
- Tell the incapable patient that a substitute decision-maker will assist the patient in understanding the proposed treatment and will be responsible for making the final decision.
- Involve the incapable patient, to the extent possible, in discussions with the substitute decision-maker.
- If the patient disagrees with the need for a substitute decision-maker, or disagrees with the involvement of the present substitute, the physician must advise the patient of his or her options. These include finding another substitute of the same or more senior rank, and/or applying to the Consent and Capacity Board for a review of the finding of incapacity.21
- Reasonably assist the patient if he or she expresses a wish to exercise the options outlined above in paragraph 3.
Notably, the HCCA does not require that the patient receive advice from a rights adviser (an actual person): only rights information is required to be provided by the proposing health practitioner. This is in contrast to the provisions for patients in a psychiatric facility under the Mental Health Act, who receive rights advice upon numerous changes of legal status, including upon a finding of treatment incapacity, incapacity to manage property, and involuntary detention.
In addition to health practitioners’ obligations to patients found incapable, the HCCA has also been interpreted by the Ontario Court of Appeal as requiring that health practitioners ensure that SDMs understand their decision-making role and obligations.
2. Challenging a Finding of Incapacity
Patients found incapable under the HCCA may apply to the Consent and Capacity Board (the “CCB”) for a review of that finding. The CCB is an independent, quasi-judicial body with specialized jurisdiction over many matters, including consent to treatment under the HCCA, findings of financial incapacity, involuntary admission to a psychiatric facility on a Form 3 or 4 under the Mental Health Act, and capacity to consent to collect, use and disclose personal health information under the Personal Health Information Protection Act.
Patients subject to guardianship of the person, or who have executed a power of attorney for personal care waiving the patient’s right to apply for a review of the finding of incapacity (often referred to as a ‘Ulysses clause’), may not apply to the CCB for a review of the finding of incapacity. Powers of attorney for personal care containing Ulysses clauses are relatively uncommon and are only effective if they comply with specific requirements in the SDA:
- At the time the power of attorney was executed or within 30 days afterwards, the grantor made a statement in the prescribed form indicating that he or she understood the effect of the provision and of subsection (4) [which addresses revocation].
- Within 30 days after the power of attorney was executed, an assessor made a statement in the prescribed form,
i. indicating that, after the power of attorney was executed, the assessor performed an assessment of the grantor’s capacity,
ii. stating the assessor’s opinion that, at the time of the assessment, the grantor was capable of personal care and was capable of understanding the effect of the provision and of subsection (4) [which addresses revocation], and
iii. setting out the facts on which the opinion is based. 
The SDA requires extra procedural protections for grantors of powers of attorneys containing exceptional clauses, such as the requirement that the capacity of the grantor be confirmed at, or 30 days after, execution.
At a CCB hearing reviewing a health practitioner’s finding of incapacity, the onus is always on the health practitioner proposing treatment to prove a lack of capacity on a balance of probabilities. In Starson, the Supreme Court explained the mandate of the CCB when hearing an application for review of a finding of incapacity:
The legislative mandate of the Board is to adjudicate solely upon a patient’s capacity. The Board’s conception of the patient’s best interests is irrelevant to that determination. As the reviewing judge observed, “[a] competent patient has the absolute entitlement to make decisions that any reasonable person would deem foolish” (para. 13). This point was aptly stated by Quinn J. in Koch (Re) 1997 CanLII 12138 (ON SC), (1997), 33 O.R. (3d) 485 (Gen. Div.), at p. 521:
The right knowingly to be foolish is not unimportant; the right to voluntarily assume risks is to be respected. The State has no business meddling with either. The dignity of the individual is at stake.
In this case, the only issue before the Board was whether Professor Starson was capable of making a decision on the suggested medical treatment. The wisdom of his decision has no bearing on this determination.
The law presumes a person is capable to decide to accept or reject medical treatment: s. 4(2) of the Act. At a capacity hearing, the onus is on the attending physician to prove that the patient is incapable. I agree with the Court of Appeal that proof is the civil standard of a balance of probabilities. As a result, patients with mental disorders are presumptively entitled to make their own treatment decisions. Professor D. N. Weisstub, in his Enquiry on Mental Competency: Final Report (1990), at p. 116 (“Weisstub Report”), notes the historical failure to respect this presumption:
The tendency to conflate mental illness with lack of capacity, which occurs to an even greater extent when involuntary commitment is involved, has deep historical roots, and even though changes have occurred in the law over the past twenty years, attitudes and beliefs have been slow to change. For this reason it is particularly important that autonomy and self determination be given priority when assessing individuals in this group.
The Board must avoid the error of equating the presence of a mental disorder with incapacity. Here, the respondent did not forfeit his right to self-determination upon admission to the psychiatric facility: see Fleming v. Reid, supra, at p. 86. The presumption of capacity can be displaced only by evidence that a patient lacks the requisite elements of capacity provided by the Act.
The HCCA restricts the ability of a patient to bring repeated applications challenging a finding of incapacity. Where the CCB has confirmed a finding that a patient is incapable with respect to a treatment, that patient must wait six months before requesting another review of the finding of incapacity, subject to leave granted by the CCB. Of course, where a formerly incapable patient’s capacity returns, the health practitioner should revoke the finding of incapacity and obtain consent directly from the patient (regardless of whether the patient has the legal right to bring an application to the CCB). In the authors’ experience, this does not always occur.
The HCCA contains provisions governing the procedure for determining when treatment may be administered to a patient who has been found incapable, but who intends to challenge that finding (or appoint a representative) and the application to the CCB is not prohibited. In these circumstances, treatment shall not begin (and the health practitioner has an obligation to ensure that reasonable steps are taken to ensure that treatment is not begun), until:
(a) 48 hours have elapsed since the health practitioner was first informed of the intended application to the Board without an application being made;
(b) the application to the Board has been withdrawn;
(c) the Board has rendered a decision in the matter, if none of the parties to the application before the Board has informed the health practitioner that he or she intends to appeal the Board’s decision; or
(d) if a party to the application before the Board has informed the health practitioner that he or she intends to appeal the Board’s decision,
(i) until the period for commencing the appeal has elapsed without an appeal being commenced, or
(ii) until the appeal of the Board’s decision has been finally disposed of.
A health practitioner can still provide treatment in an emergency, with limited exceptions, as described above, for a patient found incapable and who intends to challenge that finding.
Where the CCB confirms the finding of incapacity with respect to treatment, and the patient commences an appeal from that CCB decision to the Court, the Court may make an order permitting treatment to be administered, notwithstanding the pending appeal, if the following conditions are met:
The court is satisfied,
(i) the treatment will or is likely to improve substantially the condition of the person to whom it is to be administered, and the person’s condition will not or is not likely to improve without the treatment, or
(ii) the person’s condition will or is likely to deteriorate substantially, or to deteriorate rapidly, without the treatment, and the treatment will or is likely to prevent the deterioration or to reduce substantially its extent or its rate;
(b) that the benefit the person is expected to obtain from the treatment outweighs the risk of harm to him or her;
(c) that the treatment is the least restrictive and least intrusive treatment that meets the requirements of clauses (a) and (b); and
(d) that the person’s condition makes it necessary to administer the treatment before the final disposition of the appeal.
3. Admission to a Care Facility and Provision of Personal Assistance Services
The test for capacity in the HCCA applies to admission to a care facility, consent to treatment, and the provision of personal assistance services. The HCCA provides that an “evaluator” who finds a person incapable with respect to admission to a care facility shall provide information to the patient explaining the consequences of the finding of incapacity in the manner specified by their professional governing body. Evaluators are a class of individuals defined under the HCCA as members of many of the regulated health professions (including social workers). The provisions relating to a patient’s right to apply to the CCB for a review of the finding of incapacity with respect to admission to a care facility and forestalling admission to a care facility pending a decision of the CCB are substantially similar to the provisions relating to treatment.
The provisions of the HCCA with respect to capacity to make a decision to receive personal assistance services in a long-term care home (and to challenge that decision before the CCB) are substantially similar to the provisions relating to capacity for admission to a care facility. One notable exception is that the HCCA does not contain provisions forestalling the provision of personal assistance services pending an application to the CCB.
4. Capacity for Personal Care under the Substitute Decisions Act, 1992
The SDA contains a procedure for assessing capacity to make decisions relating to personal care. The two-part test for capacity under the SDA is identical, with necessary modifications, to that in the HCCA.
Importantly, the test for capacity for “personal care” under the SDA does not override the capacity regime under the HCCA. The SDA contains a carve-out stating that, where an attorney for personal care is authorized to make a decision under the HCCA, the HCCA provisions will apply to that decision. Where the HCCA does not govern a personal care decision, the provisions of the SDA will apply:
When power of attorney effective
49. (1) A provision in a power of attorney for personal care that confers authority to make a decision concerning the grantor’s personal care is effective to authorize the attorney to make the decision if,
(a) the Health Care Consent Act, 1996 applies to the decision and that Act authorizes the attorney to make the decision; or
(b) the Health Care Consent Act, 1996 does not apply to the decision and the attorney has reasonable grounds to believe that the grantor is incapable of making the decision, subject to any condition in the power of attorney that prevents the attorney from making the decision unless the fact that the grantor is incapable of personal care has been confirmed. 1996, c. 2, s. 32 (1).
Where the HCCA does not apply to a personal care decision, it is important to note that an attorney may simply begin to exercise his/her authority over personal care provided he/she has reasonable grounds to believe the grantor is incapable – unless the grantor has specified in the power of attorney for personal care that it only becomes effective once incapacity is confirmed. There is no overarching requirement for incapacity to be confirmed by a third party before an attorney begins to exercise authority under the SDA. A grantor may specify the method of confirmation, including which individual is to make the determination of incapacity. Where no method is specified in the power of attorney for personal care, the SDA specifies that an “assessor” will confirm incapacity, but the grantor may specify the factors to be considered by the assessor. An “assessor” is defined by regulation as a member of specified health colleges, who has completed a course and met other requirements.
An assessment by a capacity “assessor” is not always required for an attorney for personal care to begin exercising his/her authority. However, where an assessor is to perform an assessment for capacity, the grantor has the right to refuse to be assessed. When conducting an assessment, assessors are required to explain to the person being assessed:
(a) the purpose of the assessment;
(b) the significance and effect of a finding of capacity or incapacity; and
(c) the person’s right to refuse to be assessed.
However, the right to refuse an assessment by an assessor can be overridden by a Ulysses clause (discussed above) in a power of attorney for personal care, or by court order. Most importantly, the right to refuse an assessment of capacity does not apply to decisions covered by the HCCA (i.e. patients attending a hospital for treatment cannot refuse to have their capacity to consent to treatment assessed by a treating health practitioner while still requesting that treatment be provided).
C. Substitute Decision-Making
Where consent is required for the provision of treatment, admission to a care facility, or the provision of personal assistance services, and the patient has been found incapable with respect to that decision, consent may be obtained from the patient’s SDM.
The HCCA contains provisions for determining which individual is the correct SDM, and the basis upon which the SDM is to decide to give or refuse consent on behalf of the incapable person.
2. The Hierarchy
All incapable patients have an SDM, whether they know it or not, and whether they want one or not. According to the HCCA, the following individuals may give or refuse consent to treatment on behalf of an incapable person. These individuals are ranked in a hierarchy, with decisions of those individuals higher on the list prevailing over decisions made by individuals lower on the list:
- Guardian of person with authority for treatment
This person is someone who has an order from the Superior Court of Ontario naming him/her the guardian of the person for the incapable person under the SDA. It is important to note that this is not necessarily the same person as the Guardian for Property of an incapable person or the Statutory Guardian of the incapable person, who may only have authority over the person’s money/property.
- Attorney for personal care with authority for health care
This person is the attorney as named in a power of attorney for personal care under the SDA (discussed below).
- Representative appointed by CCB
This person is someone who has been appointed by the Consent and Capacity Board to make the decision currently required by the incapable person regarding treatment, admission to a long-term care home, or personal assistance services in a long-term care home. The CCB may also authorize the Representative to make a wider range of decisions for the incapable person related to treatment, admission to a long-term care home, or personal assistance services. 
- “Spouse” or “partner”
Two persons are “spouses” if they are
(a) married to each other; or
(b) living in a conjugal relationship outside marriage and,
(i) have cohabited for at least one year,
(ii) are together the parents of a child, or
(iii) have together entered into a cohabitation agreement under section 53 of the Family Law Act.
They can be spouses if they are both of the same sex or the opposite sex. They are not spouses if they are not yet divorced, but are living separate and apart within the meaning of the Divorce Act (Canada).
Two people are “partners” if they have lived together for at least one year and have a close personal relationship that is of primary importance in both persons’ lives. This can include friends who have lived together for at least one year (a non-sexual relationship) and have a close personal relationship that is of primary importance in both their lives. However, just because individuals are roommates or housemates, they may not be partners because they may not have a close personal relationship that is of “primary importance” in both their lives. Relatives living together, for example a parent and adult child, may meet this definition.
- Child or parent or Children’s Aid Authority (CAS) or other person lawfully entitled to give or refuse consent to treatment in place of parent
This definition does not include a parent with right of access only. If CAS, or another person, is standing in place of a parent, this does not include the parent. For a child to act as SDM, he/she must be at least 16 years of age, unless he/she is the parent of a child for whom he/she is acting (e.g., the 15-year old mother of an infant would be entitled to act on behalf of her child).
- Parent with right of access only
- Brother or sister
- Any other relative
People who do not meet the above definitions but are related by blood, marriage or adoption, are relatives.
Where there is a conflict between two equally ranked persons in the hierarchy who meet the requirements to act jointly as SDMs, the Public Guardian and Trustee “shall make the decision in their stead.”
3. Requirements to be SDM
Individuals ranked on the hierarchy may only give or refuse consent provided that they meet the below requirements:
(a) the proposed SDM is capable with respect to the treatment;
(b) the proposed SDM is at least 16 years old, unless he or she is the incapable person’s parent;
(c) the proposed SDM is not prohibited by court order or separation agreement from having access to the incapable person or giving or refusing consent on his or her behalf;
(d) the proposed SDM is available;
(e) the proposed SDM is willing to assume the responsibility of giving or refusing consent; and
(f) there is no person higher on the ranked list of substitute decision makers SDMs who meets these requirements.
The requirement that the SDM be capable frequently causes confusion. It is the responsibility of the health practitioner proposing treatment to obtain consent from a capable SDM. The health practitioner may have limited knowledge about the SDM, and not have a health history of this individual. However, the health practitioner should make inquiries of SDMs to determine if they are capable. If an individual is incapable, the health practitioner must move to the next highest SDM in the hierarchy who meets the above requirements.
An SDM found incapable by a health practitioner does not have a statutory right under the HCCA to make an application to the CCB for a review of the finding of incapacity. Where an SDM is found incapable, his/her best remedy is to apply to the CCB to be appointed as a representative on behalf of the incapable patient (a “Form C” application). Under the HCCA, a representative may be appointed for an incapable patient by the CCB if:
- The incapable person does not object to the appointment.
- The representative consents to the appointment, is at least 16 years old and is capable with respect to the treatments or the kinds of treatment for which the appointment is made.
- The appointment is in the incapable person’s best interests.
On an application to be a representative the CCB will determine whether the proposed representative is capable to make the decision for the patient, and will effectively resolve the dispute over the health practitioner’s determination of the SDM’s incapacity.
The requirement that the SDM be “available” is defined under the HCCA. A person is available if “it is possible, within a time that is reasonable in the circumstances, to communicate with the person and obtain a consent or refusal.” The SDM need not be physically present in order to be available (a fact that is arguably more important in this day of connectivity, where a person may be at a great geographical distance but still be able to participate in treatment decisions).
There is one exception to the general rule that only the person highest on the hierarchy (and who meets the above requirements) may give consent on behalf of the incapable patient. A family member present or contacted may consent or refuse consent if he or she believes that:
(a) no person higher or with the same ranking exists; or,
(b) if a higher ranking person exists, that person is not a guardian of the person, attorney for personal care, or Board appointed representative with authority to consent AND that person would not object to him or her making the decision.
Where no person on the hierarchy meets the requirements to act as an SDM, the Public Guardian and Trustee “shall” make the decision to give or refuse consent to treatment or admission to a care facility. However, the Public Guardian and Trustee is not required to make a decision relating to the provision of personal assistance services – the HCCA provides that the Public Guardian and Trustee “may” make this decision, (a discretion echoed in the Personal Health Information Protection Act with respect to consent to the collection, use and disclosure of personal health information). Where the Public Guardian and Trustee declines to make a decision relating to the provision of personal assistance services, an individual would likely have to apply to court to be the incapable patient’s guardian of the person with authority to make decisions regarding personal assistance services, or apply to the CCB to be the incapable patient’s representative, and thereby pull rank on the hierarchy of SDMs.
4. Obligations of the SDM
The HCCA specifies the obligations of SDMs and the factors they shall consider in making a decision on behalf of an incapable person.
If the SDM is aware of prior “wishes” that are “applicable to the circumstances”, expressed when the patient was aged 16 or older and capable, the SDM is required to act in accordance with these wishes. However, where there is no prior capable wish expressed by the patient, the SDM shall make a decision based on the patient’s best interests, taking into consideration the following factors:
(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.
In giving or refusing consent on behalf of the incapable patient, the SDM is entitled to receive all of the same information the patient would have been entitled to receive in order to give or refuse informed consent. As noted above, the Ontario Court of Appeal has held that health practitioners also have an obligation to ensure that SDMs are informed of their decision-making obligations in consenting or refusing treatment, set out above.
There is a two-stage analysis for making decisions on behalf of an incapable person: first, the SDM must determine if there are prior capable wishes that must be followed and, if there are none, the SDM must determine what decision is in the patient’s best interests. The two-stage analysis for making decisions on behalf of incapable persons under the HCCA, and the duties of SDMs, was explained by the Supreme Court in Rasouli:
Under the HCCA, the substitute decision-maker does not have carte blanche to give or refuse consent. He or she must comply with the requirements of s. 21 of the Act, which contemplates two situations. The first is where the substitute decision-maker knows of a prior expressed wish by the patient which is applicable to the circumstances. The second is where there is no such wish, in which case the substitute decision-maker “shall act in the incapable person’s best interests”.
(1) Prior Expressed Wishes
If the substitute decision-maker knows of a prior wish regarding treatment that the patient expressed when capable and over 16 years old, and that is applicable in the circumstances, the wish must be followed: s. 21(1). This reflects the patient’s autonomy interest, insofar as it is possible.
While the HCCA gives primacy to the prior wishes of the patient, such wishes are only binding if they are applicable to the patient’s current circumstances. This qualification is no mere technicality. As the Ontario Court of Appeal held in Conway v. Jacques (2002), 59 O.R. (3d) 737, at para. 31:
. . . prior capable wishes are not to be applied mechanically or literally without regard to relevant changes in circumstances. Even wishes expressed in categorical or absolute terms must be interpreted in light of the circumstances prevailing at the time the wish was expressed.
Needless to say, where an incapable patient has expressed a prior wish that life support not be withdrawn, the intended meaning and scope of the wish must be carefully considered: see Fleming, at p. 94. The question is whether, when the wish was expressed, the patient intended its application in the circumstances that the patient now faces…. Changes in the patient’s condition, prognosis, and treatment options may all bear on the applicability of a prior wish: Conway, at paras. 37-38. …
A prior wish need not identify every possible future development in order to be applicable: Scardoni, at para. 74; K.M.S. (Re), 2007 CanLII 29956 (Ont. C.C.B.). However, a wish that is unclear, vague, or lacks precision may be held inapplicable to the circumstances. On this basis, the Board has found there were no prior wishes relating to life support applicable to the existing circumstances in numerous cases: D.D. (Re), 2013 CanLII 18799; P. (D), Re, 2010 CarswellOnt 7848; E.B. (Re), 2006 CanLII 46624; G. (Re); E. (Re), 2009 CanLII 28625; H.J. (Re), 2003 CanLII 49837. I have been unable to locate any case in which there was a prior expressed wish opposing withdrawal of life support that was held to be applicable and therefore binding in the circumstances.
If it is unclear whether a prior wish is applicable, the substitute decision-maker or physician may seek directions from the Board: s. 35. Alternately, if the substitute decision-maker acts on a prior wish that the physician believes is not applicable, the physician may challenge the consent decision before the Board: s. 37. The physician’s submissions on the patient’s condition, prognosis, and any adverse effects of maintaining life support will be relevant to the Board’s assessment of applicability.
In addition, either the substitute decision-maker or physician may apply to the Board for permission to depart from prior wishes to refuse treatment: s. 36. The Board may grant permission where it is satisfied that the incapable person, if capable, would probably give consent because of improvement in the likely result of the treatment since the wish was expressed: s. 36(3).
I note that the HCCA also provides that the substitute decision-maker is not required to comply with an expressed prior wish if “it is impossible to comply with the wish”: s. 21(1)2. […]
(2) The Best Interests of the Patient
If the substitute decision-maker is not aware of an expressed prior wish of the patient or if the wish is not applicable to the circumstances, the substitute decision-maker must make her consent decision based on the best interests of the patient, according to the criteria set out in s. 21(2). These criteria include the medical implications of treatment for the patient, the patient’s well-being, the patient’s values, and any prior expressed wishes that were not binding on the substitute decision-maker. This legislative articulation of the best interests of the patient aims at advancing the values that underpin the HCCA: enhancing patient autonomy and ensuring appropriate medical treatment.
The substitute decision-maker is not at liberty to ignore any of the factors within the best interests analysis, or substitute her own view as to what is in the best interests of the patient. She must take an objective view of the matter, having regard to all the factors set out, and decide accordingly. This is clear from the mandatory wording of the opening portion of s. 21(2): the decision-maker “shall take into consideration” the listed factors. … The intent of the statute is to obtain a decision that, viewed objectively, is in the best interests of the incapable person.
The HCCA provides a mechanism to ensure that the SDM is complying with his/her obligations to the patient under this two-stage analysis: an application to the CCB by the health practitioner under a “Form G”. This application is discussed in more detail below.
5. Powers of Attorney for Personal Care and Guardians of the Person
Capable patients, who are dissatisfied with their default statutory SDM under the HCCA, are not required to accept that future decisions will be made for them by, for example, an estranged relative. They can choose someone else. The SDA contains provisions permitting a patient to create a power of attorney for personal care designating an attorney to make personal care decisions (sometimes called a ‘proxy directive’). An attorney for personal care will rank above everyone in the hierarchy set out in the HCCA (except a guardian of the person).
Under Part II of the SDA, a person may give a written power of attorney for personal care authorizing the person (or persons) named to make decisions on behalf of the person granting the power of attorney. This power of attorney for personal care may also contain “instructions with respect to the decisions the attorney is authorized to make.” These “instructions” are to be interpreted by the SDM as “wishes” for decisions under the HCCA. The power of attorney for personal care must be in writing and be signed by two witnesses. In order to create an effective power of attorney for personal care, the patient must be capable, meaning that he/she must:
(a) have the ability to understand whether the proposed attorney has a genuine concern for their welfare; and
(b) appreciate that the patient may need to have the proposed attorney make decisions for the person.
A power of attorney for personal care that confers authority to make a decision concerning the grantor’s personal care will be effective for all decisions under the HCCA.
Beyond the powers of other default SDMs under the HCCA, the SDA also provides that a power of attorney may give authority to an attorney:
(a) to use force to determine whether the patient is incapable,
(b) to use force to apprehend the patient and take them to a place of treatment, and
(c) to waive the patient’s right to apply to the consent and capacity board to review a finding of incapacity.
However, as noted above, these powers may only be included in a power of attorney for personal care if:
1. At the time the power of attorney was executed or within 30 days afterwards, the grantor made a statement in the prescribed form indicating that he or she understood the effect of the provision and of subsection (4) [which addresses revocation].
2. Within 30 days after the power of attorney was executed, an assessor made a statement in the prescribed form,
i. indicating that, after the power of attorney was executed, the assessor performed an assessment of the grantor’s capacity,
ii. stating the assessor’s opinion that, at the time of the assessment, the grantor was capable of personal care and was capable of understanding the effect of the provision and of subsection (4) [which addresses revocation], and
iii. setting out the facts on which the opinion is based. 
Where powers with a greater potential for abuse are granted to attorneys, the SDA protects the grantor by ensuring their capacity is confirmed through a special type of assessment.
The highest rung on the hierarchy of SDMs in the HCCA belongs to guardians of the person. The SDA sets out the procedure for appointing guardians of the person, and also provides for the powers of those guardians. Guardians of the person can only be appointed by the Court on an application. A full examination of guardianship proceedings is beyond the scope of this Paper, but it is important to note that a guardian of the person will not necessarily have authority to make health-care decisions on behalf of an incapable patient, unless the court order specifically provides this power.
Both attorneys for personal care and guardians of the person are required to act diligently and in good faith. For any decisions governed by the HCCA, attorneys for personal care and guardians of the person appointed under the SDA are required to act in accordance with their obligations under the HCCA, set out above.
6. Applications with respect to Substitute Decision-Making
(a) Section 37 Applications
Section 37 of the HCCA permits a health practitioner to bring an application (called a “Form G”) to determine whether an SDM is complying with his/her obligations under the HCCA. In some cases, these applications involve a fact scenario in which a health practitioner has proposed a palliative plan of care for a terminally ill patient, and the SDM has refused – arguing that the patient would want to be kept “full code” and that all medical interventions should be undertaken. The health practitioner can bring an application to the CCB to determine whether the SDM’s refusal to consent to a treatment or plan of treatment is done in furtherance of an expressed wish, or is in the patient’s best interests. If the SDM has not complied with his/her obligations, the CCB can order the SDM to consent to a treatment or plan of treatment.
In M.A. v. Benes, the Court of Appeal for Ontario explained the rationale for applications to determine whether the SDM is acting in accordance with the patient’s best interests:
Both A.M. and the Attorney General acknowledge that s.21(1) protects incapable persons by requiring their prior capable wishes to be respected both by the S.D.M. and by the Board.
But where an incapable person has not expressed a prior capable wish, deciding the appropriate treatment is far more complex. It is more complex because it is not known whether an incapable person would have consented to a particular treatment had that person been capable. Yet, respect for the dignity and welfare of an incapable person may require that person to be treated.
Sections 21 and 37 of the Act respond to this situation by requiring both the S.D.M. and the Board to apply a “best interests” test where an incapable person has not expressed a prior capable wish. Under s.37, the Board considers the submissions of the S.D.M., the treating health practitioner, the incapable person and any other relevant party. The Board then decides whether the S.D.M. has applied s.21 properly. In other words, the Board, like the S.D.M., applies the criteria in s.21 and decides what is in the best interests of the incapable person. The Board can then direct the S.D.M. in accordance with its decision. Should the S.D.M. fail to comply with the Board’s direction, decision making authority passes to the next ranking S.D.M. under s.20 of the Act.
Similarly, in Rasouli, the Supreme Court of Canada explained the statutory scheme that has been developed to address conflicts between physicians and SDMs:
Where physicians and substitute decision-makers disagree about whether withdrawal of life support would be in the best interests of the patient, the HCCA provides the procedure for resolving this conflict. Under s. 37, the health care practitioner may apply to the Board to have the decision of the substitute decision-maker set aside on the ground that it is not in the best interests of the incapable person, having regard to the factors set out in s. 21(2) of the Act. This is an important avenue of recourse for physicians who believe that life support can no longer be ethically administered because it is not in the best interests of the patient to do so. The Board must duly consider the physician’s professional opinion and submissions on what would be of medical benefit to the patient.
If the Board agrees that the substitute decision-maker did not act in the best interests of the patient, it may substitute its own opinion for that of the substitute decision-maker: s. 37(3). Alternatively, if the Board concludes that the substitute decision-maker did act in the best interests of the patient, it can affirm the decision of the substitute decision-maker. In making these determinations, the Board must objectively apply the same criteria that substitute decision-makers are required to consider under s. 21. The Board is well placed to make a determination of whether treatment is in the best interests of the patient, in light of the statutory objectives of enhancing patient autonomy and ensuring appropriate medical care…. 
As the Supreme Court noted, it is only where a physician and an SDM disagree, that the CCB will become involved to determine the best interests of the patient.
The facts of the case of Grover v Grover are illustrative of Form G applications. In that case, an appeal was brought before the Ontario Superior Court of Justice from a decision of the CCB ordering the withdrawal of life support. The health practitioner brought an application under section 37(1) to the CCB for a determination of whether the SDM had failed to comply with her obligations. Ms. Grover had been hospitalized after she suffered a stroke that left her in a state requiring life-support measures, including the use of a ventilator and an endotracheal tube. She had also suffered two prior strokes. The SDM, who was Ms. Grover’s daughter, was acting on Ms. Grover’s directive to do everything possible to save and prolong her life should she be in an “acute-care” situation. The CCB ordered the withdrawal of life support. In reaching this decision, the CCB concluded that the directive did not reflect Ms. Grover’s capable wishes because she could not have foreseen the occurrence of a third stroke (as opposed to only two strokes). In the CCB’s conclusion, Mrs. Grover’s directive would have been different had she known that she would suffer a third stroke. This conclusion was upheld by the Superior Court of Justice.
(b) Applications by Incapable Patients or Third Parties
Even where a patient has been found incapable with respect to treatment and this finding has been upheld by the CCB, that patient is not helpless to challenge decisions made by a family member who is acting as his/her SDM. Under s. 33 of the HCCA, a patient (or another person) may apply to the CCB to have a different person appointed as the patient’s representative. As the representative, this new individual would rank above any other family member of the patient, and will only rank beneath a guardian of the person or attorney for personal care in the hierarchy of SDMs set out in s. 20 of the HCCA. The CCB will grant this appointment where it is in the patient’s best interests. Patients may also apply to the CCB for a review of an SDM’s decision to consent to the incapable patient’s admission to a hospital for purposes of treatment, as contemplated under s. 24 of the HCCA.
(c) Other Applications by the SDM or Health Practitioner
SDMs and health practitioners may be put in unenviable positions. SDMs may be asked to interpret and apply vague, confusing or contradictory wishes. They may also be required by the HCCA to refuse treatment based on a prior capable wish when the patient, if capable today, may have given consent to the treatment. Similarly, health practitioners may be asked to comply with instructions given by SDMs in the above circumstances.
The HCCA recognizes the difficulties inherent in the role of the SDM applying prior capable wishes, and provides that an SDM or health practitioner may bring an application to the CCB where a wish expressed by the patient is unclear, and may also bring an application to depart from a prior capable wish. A typical case would be where the patient, while capable, expressed a wish to not receive a certain type of medication (e.g., neuroleptics); an SDM could apply to the CCB for permission to depart from the prior capable wish based on the fact that if the incapable patient knew at the time of making the wish what is now known about reduced side effects to a particular medication, the patient may have made a different wish in the circumstances. In short, the CCB will give permission for the SDM to depart from a prior capable wish if it is satisfied that the patient, if capable, would probably give consent because the likely result of the treatment is significantly better than would have been anticipated in comparable circumstances at the time the wish was expressed.
Where the content of a wish, its applicability, or the capacity of the patient at the time the wish was expressed is unclear, the SDM or the health practitioner may apply to the CCB for directions on how to interpret and apply the wish.
D. Highlights of Consent and Capacity Law in Ontario
With the narrow exception of treatment in emergencies, informed consent must always be obtained from a patient (or if incapable, his/her SDM) before treatment is administered. Where the patient is capable, the law of Ontario limits the ability to consent to every possible prospective treatment. The patient can only lawfully give informed consent to treatments that relate to the patient’s current health condition. Where a patient is incapable, an SDM is required to determine whether the patient has expressed applicable prior capable wishes (which must be followed by the SDM); or otherwise has expressed other wishes, values, and beliefs (which must be considered). The patient may express wishes, values and beliefs in any form, and recent expressions of prior capable wishes will prevail over older statements.
Importantly, with the narrow exception for emergencies, regardless of whether a patient is capable or not, or has expressed prior capable wishes or not, when a treatment is proposed informed consent must be obtained from a person. Even where an SDM has been found by the CCB to have not complied with his/her obligations, the CCB does not bypass the role of the SDM and order the health practitioner to either administer or withhold treatment. Instead, the HCCA provides that CCB will give “directions” to be followed by SDM in giving or refusing consent.
This legislative model balances the patient’s right to give informed consent to treatment with the patient’s right to give directions regarding future health care in the event he/she becomes incapable. The right to give or refuse informed consent entails being advised of the risks and benefits of a particular treatment as contextualized in the patient’s current health condition, and the health problems that a health practitioner has determined are likely to occur in future. The SDM’s role is to satisfy this right by speaking with health practitioners and making an informed decision based on the current information presented. However, as part of this consent process, the SDM is also required to situate the patient’s prior capable wishes in the context of the patient’s present health conditions, and give informed consent in accordance with these wishes where they are applicable.
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