Report for the Law Commission of Ontario:
The Advocacy Centre for the Elderly (“ACE”) and the law firm of Dykeman Dewhirst O’Brien LLP (“DDO”) have been retained by the Law Commission of Ontario to prepare a report on the laws of consent to treatment, capacity and substitute decision-making in Ontario. To that end, ACE and DDO are collecting accurate and detailed information about how consent and capacity laws are applied in long-term care homes and hospitals throughout the province, with a specific emphasis on advance care planning.
DDO and ACE are circulating a letter to long-term care homes and hospitals requesting their assistance with this project. We are asking them to provide documents relating to health care consent and advance care planning in each institution. A copy of the text of this letter can be accessed through the following link: Letter Requesting Documents
What is Advance Care Planning?
Advance care planning is a process of planning for a time when you may not have the mental capacity to make decisions about your health care. It usually involves choosing someone to make decisions on your behalf when you are not able to do so. This person is known as your substitute decision-maker.
A key element in advance care planning is the communication between you and your substitute decision-maker. If you have specific ideas about the type of health care or living arrangements that you may or may not want for yourself in the future, you need to communicate these ideas to your substitute decision-maker. Examples of information that you should share are your likes and dislikes, how you wish to be treated, where you want to live, how you want to live and your specific wishes about health treatment, medications and end-of-life care.
In accordance with the Health Care Consent Act, your substitute decision-maker must follow your last known capable wishes when making decisions for you, once you are incapable. You may have expressed your wishes in writing, verbally or by alternative means of communication (e.g., Bliss Boards or sign language). If your substitute decision-maker is unaware of any wishes applicable to the particular situation, he or she must act in your best interests and take into account your values and beliefs. The rules for how your substitute decision-maker must determine your best interests are set out in section 21(2) of the Health Care Consent Act.
Please note that advance care planning does not replace informed consent. Even if you have expressed wishes about future health care, health practitioners (e.g., doctors, nurses, other members of your health care team) must still get consent or refusal to consent before they treat you. That consent must come from you if you are mentally capable. If you are not mentally capable according to the test in the Health Care Consent Act,, health practitioners must turn to your substitute decision-maker for consent even if you have a written advance directive or any other form of advance care plan.
It is your substitute decision-maker who must determine if the wishes you have expressed about your future care are applicable to the decision he or she is being asked to make on your behalf. That is why it is important for you to discuss your wishes with your future substitute decision-maker so that he or she understands what you want.