Health Care Consent & Advance Care Planning
In Ontario, consent to treatment provided by a regulated health professional is governed by the Health Care Consent Act (HCCA). The list of health practitioners can be found in the Regulated Health Professions Act. Also governed by the HCCA is admission to a long-term care home and personal assistance services in a long-term care home or retirement home.
The HCCA requires all regulated health professionals to obtain informed consent from the person, or if they are incapable, from their substitute decision-maker, prior to treatment, unless it is an emergency. What constitutes informed consent, capacity, who makes a determination of capacity, emergencies, the hierarchy of substitute decision-makers, and the principles of substitute decision-making are all regulated by the HCCA. The HCCA also regulates hearings before the Consent and Capacity Board, related to findings of incapacity and substitute decision-making.
Informed consent must also be obtained prior to admission to a long-term care home either from the person, if they are capable, or from their substitute decision-maker, unless it is an emergency. Consent to admission to a long-term care home is governed by Part III of the HCCA, with the definition of informed consent to admission to a long-term care home being located in the Fixing the Long-Term Care Act (FLTCA).
Personal assistance services in long-term care homes and retirement homes requires informed consent in some instances. Unlike the other two areas, treatment and admission, personal assistance services can be provided without informed consent in some circumstances. There has been minimal case law with respect to determining when such consent is required. Generally, long-term care homes and retirement homes will obtain consent as part of a care plan. When there is an issue related to the provision of a personal assistance service it is more likely that informed consent will be obtained. Consent to personal assistance services is governed by Part IV of the HCCA.
Advance care planning is a process, not a document.
Advance care planning is the discussion of wants and needs regarding future care that a person may have.
When a person expresses a desire for a treatment or not to have a treatment in the future, it is a “wish” as set out in s. 5 of the HCCA. WISHES ARE NOT CONSENTS. No matter how they express their wishes, they are NOT consents. Documents such as “Advance Directives”, “Levels of Care”, “Living Wills”, and even wishes set out in a “Power of Attorney for Personal Care” are NOT consents.
If the person is capable, they will always make their own personal care decisions, including treatment. However, if they are found to be incapable of making a treatment or other decision, then any “wish” they made while capable and at least 16 years of age which is relevant to the circumstances will be interpreted by their substitute decision-maker. Because wishes are expressed without context of an actual health care requirement, the substitute decision-maker will have to interpret the wish based on the actual treatment, placement, or personal assistance service being proposed and their knowledge of the person. The HCCA requires that if there is a known wish applicable to the situation made by the person while capable and aged 16 or older, the substitute decision-maker must comply with that wish, unless it is impossible. (There are applications to the Consent and Capacity Board with respect to directions, departure from wishes, and compliance with the HCCA regarding decisions by a substitute decision-maker.)
If a person has signed a document including a “wish”, this DOES NOT authorize a health practitioner to treat the person based on this “wish”, except in an emergency as defined in the HCCA.
A substitute decision-maker cannot “advance care plan” on behalf of an incapable person, meaning they cannot sign “Advance Directives” or “Level of Care” documents, as these are only expressions of wishes. Substitute decision-makers can only make decisions to consent or refuse consent to treatments or care plans which are actually proposed by a health practitioner based upon the persons current health conditions.
Legal Information and Advice
ACE can give legal advice to the older adult whose rights are in issue. In some limited circumstances, ACE may be able to provide legal information or advice to a substitute decision-maker with respect to health care consent and advance care planning. ACE does not provide information or advice to either substitute decision-makers or health care providers about their rights. ACE generally does not provide representation to older adults before the Consent and Capacity Board as low-income seniors are generally eligible for legal aid certificates for representation by private bar lawyers who are specially trained. For more information see Legal Aid Ontario.