Fries with that Will? Part Seven


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Mark Handelman

HCCA Decisions 

The HCCA applies to decisions respecting treatment, admission to a care facility[1] and “personal assistance services,” which is a term defined in the HCCA to mean only services provided in a nursing home.

SDA Subsection 49(1)(a) only authorizes the Attorney to make the decision if the HCCA authorizes the Attorney to make it.  HCCA authority to make a substitute decision first requires a finding that the Grantor is incapable of making that decision, then depends upon the hierarchy of substitute decision-makers in ss. 20(1) and the additional requirements in ss. 20(2). 

Excepting only a court-appointed guardian of the person, an Attorney named in a valid POA is at the top of the hierarchy of substitute decision-makers, so he, she or they are the likely substitute decision-makers in preference to (other) family members in the absence of guardianship litigation.  Subsection (2) requires that the Attorney be willing and available to make the decision, as well as capable with respect to the decision to be made. 

The requirement that the Attorney be capable with respect to the decision to be made is only sensible: we do not substitute consent of an incapable patient for consent by an incapable Attorney or other substitute decision-maker.  The simple reason for this is that the health practitioner requires informed consent to the treatment decision, which can only be given by someone able to understand information relevant to the decision and able to appreciate its reasonably foreseeable consequences—which is the HCCA definition of “capacity.”  Assessing patient’s capacity to make the decision, as well as assessing the capacity of substitute decision-makers (including Attorneys for personal care) is therefore the responsibility of the health practitioner seeking consent to the treatment he or she proposes. 

In practice, few health practitioners are aware there is a test for capacity, let alone aware of their professional obligations around assessing patient or Attorney capacity—next time you go for a medical checkup or a visit to the dentist, ask how he or she would assess your capacity to consent to the treatments they propose, or if they know and have charted from whom to obtain substitute consent for your treatments.  If the health practitioner gets that far, ask about substitute consent if your Attorneys for personal care disagree among themselves about consenting to your treatment…

[1]“Care facility” is a nursing home, not a retirement home.  Admission to a retirement home is a personal care decision governed by the SDA.  A “nursing home” is any facility admission to which is administered by a Community Care Access Centre.

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About Mark Handelman, BA, LLB, MHSc (bioethics)

Health Law Matters (416) 402-9476

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