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The SDA and Incapacity to Manage Personal Care – Another Example of a Limitation In Legislation

A frequent clinical challenge for doctors caring for seniors in hospitals is assessing decision making capacity and discharge planning. The following question arises; “Doctor, is the patient ‘capable’ to return home?” The problem with this question is the doctor has no authority in determining the answer.

As per Section 45 of the Substitute Decisions Act (SDA)[i]; incapacity for personal care is defined as:

A person is incapable of personal care if the person 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.

The choice of discharge destination whether to return home or to some other destination that is not a Long Term Care (LTC) Home is not a proposed intervention by a healthcare provider and thus does not fall under the Health Care Consent Act[ii] (HCCA). Physicians’ authority is limited to the HCCA and the Mental Health Act[iii] (MHA) under which a physician may certify a patient to remain involuntarily in a Schedule 1 facility, such as most hospitals if the physician is of the opinion that the patient is suffering from a mental disorder of a nature or quality that likely will result in either (i) serious bodily harm to the patient, (ii) serious bodily harm to another person, or (iii) serious physical impairment of the patient. Therefore, a physician can determine if the patient is potentially safe to leave the hospital as per the MHA, but not to which destination in the community. Yet, the choice of discharge destination may become a serious obstacle to safe discharge planning with elderly patients.

Assessment of capacity to decide on shelter defined by the SDA rests not with physicians but with Assessors of the Ministry of the Attorney General. However, what would be the outcome of a finding of incapacity? The decision regarding shelter would then go to an appointed substitute decision-maker (SDM) such as the person’s attorney for personal care. If the attorney wishes to pursue LTC placement then an additional assessment would need to be conducted by an Evaluator of the CCAC – now called Home and Community Care (HCC) to determine first eligibility and then capacity to apply for LTC.

If the patient is found eligible and incapable by the HCC Evaluator then the SDM could apply and enforce a move into LTC. However, if the patient is not eligible (i.e., does not meet LTC admission requirements) or is found capable to reject applying to LTC, then the SDM has little option as the patient cannot be forced to move into any residential setting against their will and an SDM cannot appeal a finding of capacity by an HCC Evaluator.

To summarize, physicians under the HCCA and MHA have no authority to assess capacity to decide upon choice of discharge destination. Residential choices other than LTC Homes are not healthcare proposals. HCC Evaluators are the only individuals authorized in Ontario to determine eligibility and capacity to apply for LTC. Assessors of the Ministry of the Attorney General may opine under the SDA that a person is not capable to make personal care decisions including shelter but that decision provides no authority for the SDM to enforce a move to any destination that the patient does not agree or at least assent with.

I recommend amendment to the SDA in that a finding of incapacity to manage personal care including decision-making on shelter should permit an authorized SDM to apply for LTC for the incapable person without requiring a second capacity assessment by the HCC Evaluator. Alternatively, if the Evaluator finds the person capable to reject applying for LTC despite a finding by an Assessor of incapacity to manage personal care including decision-making on shelter; that the authorized SDM be permitted to request a hearing before the Consent and Capacity Board to resolve the matter of variant findings of capacity between an Evaluator and an Assessor.

[i] Substitute Decisions Act, 1992, SO 1992, c 30

[ii] Health Care Consent Act, 1996, SO 1996

[iii] Mental Health Act, RSO 1990, c M.7

About Dr. Richard Shulman
Dr. Shulman is a geriatric psychiatrist at Trillium Health Partners and is an assistant professor at the University of Toronto. He is medical director of the Capacity Clinic and available for independent medical-legal capacity assessments.

1 Comment

  1. Helena Morgan

    December 28, 2017 - 2:37 pm

    I have come across this scenario several times and have been requested by the HCA for an opinion to assist in their decision. However the capacity assessment office has firmly stated that we cannot do this type of assessment and that this determination is strictly in the hands of the HCA evaluator.
    This leaves families/ POAs in limbo- wanting to provide safe and best care for their loved ones. Yet unable to do so without legal authority or have a proper process to meet their loved ones’ needs.
    I second your recommendation.

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