Health Care Decision Making
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Health Care Treatment Decision Making and Your Rights
The STAR Learning Centre
September 2015
Presentation by:
Johanna Macdonald and Alyssa Lane
ARCH Disability Law Centre
Health Justice Initiative
St. Michael’s Hospital
Aboriginal Legal Services of Toronto
ARCH Disability Law Centre
HIV & AIDS Legal Clinic Ontario
Neighbourhood Legal Services
St. Michael’s Hospital
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Disclaimer
This presentation contains legal information for educational purposes and not legal advice
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Agenda
Decision-making and your health care treatment
Substitute 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 Decide
If 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 treatment
Be informed
Be given voluntarily
Not be obtained through misrepresentation or fraud
Exception: certain emergency situations
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Informed Consent
Your 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 Capacity
The 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 Makers
There 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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Hierarchy of SDMs
1. Guardian of person
2. Power of Attorney for Personal Care
3. Representative appointed by the Consent and
Capacity Board
4. Spouse or partner
5. Child or parent
6. Parent with right of access
7. Brother or sister
8. Any other relative
9. Office of the Public Guardian and Trustee
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Your SDM for health care treatment decisions
You have an automatic SDM for health care decisions
The 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 Autonomy
Even 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 wishes
If your prior wishes are not known, then the SDM must act in your best interest
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Best Interests
SDM must consider:
values and beliefs
other 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 risks
whether 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 ACP
Who 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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Resources
Hand-outs and information sheets on Health Care Consent and Advance Care Planning are available on the Advocacy Centre for the Elderly website(
CLEO’s booklet on ‘Power of Attorney for Personal Care’ (
Research report ‘Health Care Consent and Advance Care Planning in Ontario’ (
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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