Health Care Treatment Decision Making and Your Rights

Health Care Decision Making

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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