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Consent for Treatment and Conflicts between Substitute Decision Makers: Options for Resolution

As per the Health Care Consent Act (HCCA), and equally applicable to the Mental Health Act (MHA), capacity to consent to treatment is defined as:

A person is capable with respect to a treatment if the person is 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.

When a person is deemed incapable, the HCCA provides a hierarchy of potential substitute decision makers (SDM). If the incapable patient hadn’t prepared a Power of Attorney for Personal Care and doesn’t have any family to act as substitute decision maker (“SDM”), then the Office of the Public Guardian & Trustee (OPG&T) becomes the patient’s SDM. However, if there is more than one person at any level in the hierarchy who meets the requirements to be SDM, then all those people are entitled to act as SDM for the patient. They may all decide together or they may decide amongst themselves as to which of them will act as the SDM. The Health Care Practitioner cannot choose which of the equal ranking SDMs may act.

What then are the options for a Health Care Practitioner proposing a treatment to an incapable patient when the equally weighted SDMs cannot agree? The options are:

  1. The health practitioner may turn to the OPG&T for the decision.
  2. Either SDM could apply to the Consent and Capacity Board (CCB) to try and be appointed the sole SDM for the decision.
  3. The Health Care Practitioner proposing the treatment can determine each SDM’s capacity to consent to the proposed treatment and thus serve as SDM. The same criteria for capacity to consent applies to the SDM as to the patient, with the provision that additionally the SDM must make decisions in accordance with the role of an SDM as per the Substitute Decisions Act (SDA) which includes particularly the need to take into account if possible any advanced directives the patient may have provided while capable, and to make decisions in the incapable patient’s best interests. The Health Care Practitioner must document explicitly reasons why an SDM lacks capacity to consent to the proposed treatment and then must notify the SDM of this decision and the reasoning for this determination. It is then up to the SDM to seek counsel if the SDM so chooses. The SDM who has been found incapable to consent has no recourse through the CCB, unlike that of the patient who could appeal such a finding. There is no provision in the legislation for an SDM who is deemed incapable.

As an example, the following is an excerpt from a letter provided to an incapable SDM: “During our meetings, you have failed to demonstrate an ability to understand the relevant information I have tried to explain to you regarding your mother’s diagnosis of dementia. The diagnosis that you insist on as the cause of your mother’s condition is not a cause of dementia. Therefore I find that you lack the ability to understand the information that is relevant to making a decision about the proposed treatment. Additionally during our meetings, you failed to demonstrate any willingness to listen to the information that is relevant to making a decision about the proposed treatments. This precludes you from demonstrating an ability to appreciate the reasonably foreseeable consequences of a decision or lack of decision regarding the proposed treatments. Therefore, I have found you incapable to consent as an SDM to the proposed treatment for your mother.”

The bottom line is that potential SDMs, in addition to their mandated roles as per the SDA mentioned above, must equally meet the requirement of capacity to consent as per the HCCA. Health Care Practitioners and other potential SDMs are not bound to be thwarted by SDMs who demonstrate inability and/or unwillingness to provide substitute consent.

About Dr. Richard Shulman
Dr. Shulman is a Geriatric Psychiatrist, and is the Service Medical Director for Seniors Mental Health Services at Trillium Health Partners (Mississauga Hospital, Credit Valley Hospital and Queensway Health Centre). He is available for independent medical-legal capacity assessments. He is an assistant professor at the University of Toronto. Email: Richard.Shulman@thp.ca