Section 4(1) of the Health Care Consent Act (HCCA) sets out a two-part test for determining whether a person has the capacity to consent to medical treatment, to be admitted to a care facility, or to receive a personal assistive service/device:

1. Is the person able to understand information relevant to making the decision; and
2. Is the person able to appreciate the consequences of a decision or lack of a decision?

Since Long Term Care Homes (LTC) are a type of care facility, consent to admission to a LTC is governed by the HCCA. However, most seniors with dementia typically are not capable of applying for or consenting to admission into a LTC. As a result, the responsibility for completing the application and for giving consent to move into a LTC falls to a substitute decision maker (SDM). Section 40(1) of the HCCA reads:

40 (1) If a person’s consent to his or her admission to a care facility is required by law and the person is found by an evaluator to be incapable with respect to the admission, consent may be given or refused on the person’s behalf by his or her substitute decision-maker in accordance with this Act.

In my clinical experience, in many cases, the incapable person has not appointed a SDM while still capable (usually by way of a power of attorney document), and the choice of who will act as SDM falls to the hierarchy for a potential SDMs described in the HCCA (section 20) such that commonly a spouse or adult child becomes the SDM.

In the alternative, such as in a case of a widow or widower without a POA and where there is conflict among their adult children over the decision to apply for LTC, a SDM can be appointed by the court (i.e. a guardianship appointment) or via appointment as the incapable patient’s representative by the Consent and Capacity Board. If there is no available family member to act and no available person to apply to be the representative or guardian, then the Office of the Public Guardian and Trustee becomes the SDM of last resort.

Once in a LTC home, an incapable patient with dementia may wish to leave (wandering behaviour is common among patients with dementia), but the patient can be confined in the locked unit of most LTC homes. This is an example of the SDM’s decision making authority taking precedence over the incapable person’s wishes.

However, the incapable person is not without options. Part III of the HCCA deals with the admission to care facilities, and sections 42 and 54 of the HCCA deal with the right of appeal.

Section III of the HCCA also includes direction regarding the right of the allegedly incapable person to appeal the finding of incapacity to consent to confinement in a care facility. The proposed section III.1 of the HCCA, which is not yet in force, will further refine the appeal process.

The Substitute Decisions Act, SO 1992, c 30 (SDA) defines a person who is incapable of personal care as a person who is not able to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonable foreseeable consequences of a decision or lack of decision.

However, the SDA does not permit an SDM to forcibly commit and confine the patient, who is incapable of personal care, into LTC. Nor does a finding of incapacity for personal care under the SDA guarantee that the patient is also incapable of consenting to LTC under the HCCA. An application for admission into a LTC under the HCCA is still required.

However, for admission to other types of care facilities, such as retirement homes, the consent of the SDM on behalf of a person incapable of personal care is sufficient. It should be noted that these retirement homes sometimes have special ‘memory care’ assisted living environments that offer confinement of incapable patients.

If the person incapable of making care decisions wants to leave the retirement home, the incapable person could choose a new attorney for care, if capable to do so, who then could consent to removing the restrictions on the patient’s movements or relocating the patient to an unlocked unit (recall that the SDA sets out two different tests for capacity to revoke and execute a power of attorney document (at s. 47) and the capacity to make personal care decisions (at s. 45), so it is possible to be capable in respect of the former and incapable in respect of the later).

Not all units in LTC are locked and patients on unlocked units do have the right to come and go from the LTC home, similar to most residents in retirement homes. Patients with dementia or other cognitive deficits often want to leave the care home they have been placed in and require confinement for their safety. However, their ability to appeal their confinement includes the right to appeal their finding of incapacity to consent to LTC under the HCCA or, if capable of doing so, by appointing a new SDM who may then consent to removing them from a locked unit.

For the SDM, making the decision to move a patient into confinement in a LTC or a retirement home is a difficult one, and involves weighing the patient’s wishes against his or her best interests (usually based on safety concerns). It is a difficult balancing act, one which the law and the courts have to make as well.