Health Care Treatment Decision Making and Your Rights

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Presentation by:

Johanna Macdonald and Alyssa Lane

ARCH Disability Law Centre

Health Justice Initiative

St. Michael’s Hospital

The STAR Learning CentreSeptember 2015

Disclaimer

This presentation contains legal information for educational purposes and not legal advice

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Agenda

Decision-making and your health care treatmentSubstitute decision makers What is advance care planning?

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Decisions about your health

How do you go about making decisions about your health care treatment?

Who decides what treatments you will/won’t get?What if you are unable to decide?Health care treatment decisions vs personal care

decisions

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Right to DecideIf you are capable of making the decision, you have a

right to decide whether or not you want treatment from a health practitioner

Your consent must:Relate to the treatmentBe informedBe given voluntarilyNot be obtained through misrepresentation or fraud

Exception: certain emergency situations

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Informed ConsentYour health care practitioner must have a discussion with you to obtain your informed consent

In order to make a decision about whether you consent to the proposed treatment, you should be told about:

Your present condition Available treatment options Risks, benefits and side effects of treatment Alternatives What may happen if you do not agree to treatment Answers your questions about the proposed

treatment

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Legal CapacityThe ability to exercise legal capacity (make decision’s for

yourself) is an important element of autonomy and human dignity

Capacity is task specific and can be fluctuating

Capacity is not: A judgement about whether the decision is in your best

interest Based upon whether others agree with your choices

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Capacity to Give Consent To give informed consent, you must be capable of

making the decision

You are considered capable to make a decision if: You are able to understand information that is

relevant to making the decision; and You are able to appreciate the consequences of

making or not making the decision

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Assumed Capacity

In Ontario, you are presumed capable of making health care treatment decisions

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Who decides that you are capable of making treatment decisions?Duty of the health care practitioner offering the treatment

to determine if you are capable or not

This must be a conversation: for each different treatment you may have a different

capacity to make the decision

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What if you are found not capable?

You may challenge the health care practitioner’s opinion that you do not have capacity by bringing an application to the Consent and Capacity Board

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What if you are found not capable?

The health care practitioner will seek out a substitute decision maker (“SDM”)

A SDM is someone who has the legal authority to make particular types of decisions on your behalf when you are incapable

This is a different role from a person who supports and assists you to make a decision for yourself

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Substitute Decision MakersThere are different types of SDMs

In Ontario the most common are:

Attorneys for Personal Care

Statutory Guardians

Court Appointed Guardians

Persons listed in Health Care Consent Act

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1. Guardian of person2. Power of Attorney for Personal Care3. Representative appointed by the Consent and Capacity Board4. Spouse or partner5. Child or parent 6. Parent with right of access7. Brother or sister8. Any other relative9. Office of the Public Guardian and Trustee

Your SDM for health care treatment decisionsYou have an automatic SDM for health care

decisionsThe automatic SDM is whoever is highest in the

hierarchy of SDMs in the Health care Consent Act that meets the requirements to be the SDM

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SDM Obligations: Promoting AutonomyEven if you have been found to be incapable and an

SDM has the authority to make decisions on your behalf, the SDM has an obligation to work with you to determine your wishes and act on those wishes as much as possible

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Your Wishes

Your wishes may be in any form at any time when you are capable

A recent capable oral wish will trump an older capable written wish

This is not the same in other Canadian Provinces

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Best Interest if no prior wishesIf your prior wishes are not known, then the SDM must

act in your best interest

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Best InterestsSDM must consider:

values and beliefsother wishes (i.e. expressed while incapable)whether treatment likely to:

improve condition prevent condition from deteriorating reduce the extent or rate of deterioration

whether condition likely to improve or remain the same or deteriorate without the treatment

if benefit outweighs riskswhether less restrictive or less intrusive treatment as

beneficial as treatment proposed

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What is Advance Care Planning in Ontario?

Identifying your future SDM, by either:

a) confirming that you are satisfied with your default/ automatic SDM in the hierarchy list that is in the Health Care Consent Act; or

b) choosing someone to act as your SDM by preparing a Power of Attorney for Personal Care (a formal written document).

Wishes, values and beliefs discussing your wishes, values and beliefs, and how you would

like to be cared for in the event you become incapable to give or refuse consent.

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Conversations about ACPWho would be my SDM if I could not make my own health care

decisions?

Who do I want to talk to about important health care decisions

Have I told my SDM things that are important to me about my health?

your health needs what you would want/not want for health care in the

future what quality of life means to what's important in you life

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Hand-outs and information sheets on Health Care Consent and Advance Care Planning are available on the Advocacy Centre for the Elderly website (www.acelaw.ca)

CLEO’s booklet on ‘Power of Attorney for Personal Care’ (http://www.cleo.on.ca/sites/default/files/book_pdfs/power.pdf)

Research report ‘Health Care Consent and Advance Care Planning in Ontario’ (http://lco-cdo.org/en/capacity-guardianship-commissioned-paper-ace-ddo)

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Resources

Acknowledgements

For their assistance preparing this presentation, we would like to thank: Ed Montigny, Legal Counsel - ARCH Disability Law

Centre Judith Wahl, Executive Director - Advocacy Centre for

the Elderly

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