What happens when a family member or friend is ailing in a hospital and no longer has the capacity to make decisions surrounding their health? What if the person does not have an identified or ascertainable attorney to handle their care pursuant to a Power of Attorney for Personal Care? Who gets to make decisions on their behalf?

Situations such as these may require what is known as “substitute decision making”.

What is Substitute Decision Making?

Substitute decision making is the process by which one person can make decisions on behalf of another when the other is not mentally capable or, in other words, does not have capacity.

Capacity is decision-specific, time-specific, and situation-specific.[1]  As such, capacity is a complicated and fluid concept in that one’s capacity can change entirely based on the circumstance at hand. For instance, a person may be incapable with respect to some tasks but have capacity with respect to others. Similarly, a person may be incapable of performing a task at one time but perfectly capable of doing so at another.[2]

When it comes to treatment, generally, a person will be capable if they are able to understand the information that is relevant to making a decision about the treatment and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.[3]

In Ontario, substitute decision making and capacity are governed by the Health Care Consent Act, 1996, SO 1996, c 2, Sched. A (“HCCA”) and the Substitute Decisions Act, 1992, SO 1992, c 30 (“SDA”)

The principle of substitute decision making, i.e., one making decisions on behalf of another who is incapable, is founded on the tenant of informed consent.

In Canada, we value autonomy and the freedom of individuals to make choices about their medical care. As such, before a healthcare practitioner undertakes to perform any procedure or provide any treatment (with the exception of emergencies), they are required to have informed consent from the patient to proceed.[4]

When the patient is not capable, a patient’s agent may provide consent on their behalf. Often, the patient’s agent will be a person (an “attorney”) which has been appointed ahead of time by the patient pursuant to a Power of Attorney for Personal Care (“POAPC”). However, sometimes, a patient may not have a POAPC or a POAPC may not be easily ascertainable. In those cases, consent to treatment may be provided on behalf of a person who is incapable by a substitute decision maker, pursuant to the HCCA.[5]

Who Can Be a Substitute Decision Maker (“SDM”)?

Subsection 20(1) of the HCCA governs who may give or refuse consent on behalf of an incapable person with respect to a treatment. Particularly, a list with the following hierarchy is provided:

1. The incapable person’s guardian of the person, if he/she has authority to do so;
2. The incapable person’s attorney for personal care, if he/she has authority to do so;
3. The incapable person’s representative appointed by the Board under section 33; if he/she has authority to do so;
4. The incapable person’s spouse[6] or partner[7];
5. A child or parent of the incapable person, or a children’s aid society or other person lawfully entitled to give or refuse consent to treatment in the place of the parent;[8]
6. A parent of the incapable person who has only a right of access;
7. A brother or sister of the incapable person; or
8. Any other relative[9] of the incapable person.

The highest ranking SDM available in a reasonable time will generally be the one medical professionals seek informed consent from.

What is the Role of a Substitute Decision Maker? How Should They Decide What to Do?

When a person becomes an SDM for an incapable patient, they are required to step into the shoes of that patient and try to make decisions for the patient in the same way the patient would have if still capable. In other words, if the SDM knows of a wish applicable to the circumstances that the incapable person expressed while capable (and at least 16 years of age), the SDM must give or refuse consent in accordance with the wish.[10]

If the SDM does not know the wishes applicable to the circumstances in question, or if it is impossible to comply with the wish, the SDM must act in the incapable person’s best interests.[11] This will include considering the incapable person’s values, beliefs, and wishes, and weighing the risks of harm and/or deterioration against the benefits of the treatment.[12]

For More Information…

Issues of capacity and substitute decision making may become more complex where there are, for instance, challenges to a patient’s incapacity, conflicts between proposed SDMs, or where decisions need to be made while a POAPC is being challenged. In those cases, it may be beneficial to speak to a lawyer about your rights and responsibilities under the law.

For more information on substitute decision-making, be sure to check out our free online WEL Blogs here: https://welpartners.com/blog/, our publications accessible here: https://welpartners.com/resources/publications, and our book on Powers of Attorney found here: https://welpartners.com/resources/WEL-on-powers-of-attorney.pdf

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[1] For more information, see: https://welpartners.com/practiceareas/capacityproceedings

[2] See for instance: Health Care Consent Act, 1996, SO 1996, c 2, Sched. A, s 15.

[3] HCCA, s 4(1).

[4] HCCA, s 10(1).

[5] HCCA, s 10(2).

[6] For the purposes of this provision, two persons are spouses if they are married to each other or are 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. Two persons are not spouses if they are living separate and apart as a result of a breakdown of their relationship: HCCA, s 20(7) and (8).

[7] For the purposes of this provision, partner means either of two persons who have lived together for at least one year and have a close personal relationship that is of primary importance in both persons’ lives: HCCA, s 20(9).

[8] Does not include a parent who only has a right of access: HCCA, s 20(1).

[9] A relative includes a person related to another person by marriage or adoption: HCCA, s 20(10).

[10] HCCA, s 21(1).

[11] HCCA, s 21(1).

[12] HCCA, s 21(2).