judith wahl advocacy centre for the elderly [email protected] · 2013-04-10 · legal advice and...

Judith Wahl Advocacy Centre for the Elderly

[email protected]

Advocacy Centre for the Elderly 2013 1

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Legal advice and representation Public legal education programs www.acelaw.ca 2 Carlton Street, Suite 701 Toronto, ON M5B 1J3 416-598-2656 [email protected] E newsletter –twice a year – Contact

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http://www.acelaw.ca/



Health care Consent ◦ What is consent? When do you need consent? Who can

provide it? ◦ What planning is part of consent?

What is Advance Care planning? ◦ In advance of what? ◦ Circumstances in which a person might advance care

plan? ◦ Who, how, why, when it is that they might do this?

How do Health consent and Advance Care Planning intersect?

Challenges to doing it Right


Informed DECISIONS about treatment, care, admission to LTC

Includes planning about care (treatment plans, care plans, setting goals for care etc)


DECISION about a person’s future Substitute Decision Maker

(SDM) which is done by either ◦ confirming who is the person’s future Substitute Decision

Maker in the hierarchy list that is in the Health Care Consent Act OR

◦ choosing someone else to act as SDM by preparing a Power of Attorney for Personal care.

WISHES - Making statements about his or her wishes for

future care, if they have any, as well as expressing his or her own values, beliefs and anything else that they think will help their SDM understand what they may want or not want in terms of health care when they themselves are not mentally capable to make decisions about health care or not able to provide their own consent or refusal of consent to treatments and health care at the time such decisions need to be made


Intent of Patient Centred Care Influence of other jurisdictions Hopes for Cost Savings Time

Good intents but….


Step One – Role of the Health Practitioner • To get an informed consent before treatment from

• the patient, if capable, or • SDM of incapable patient Consent comes from a person not a paper HCP must take direction from person not Advance Care plan Health practitioner primarily does care planning as part of the consent or develops plans of treatment and not “advance care planning” however much confusion about difference


Forms in Hospitals and LTC homes and other health services with incorrect or misleading terminology

Common misunderstandings of fundamentals about HCCA and ◦ Who is right decision maker (e.g. capable older

adult in LTC home) ◦ Who is right SDM ◦ Who is SDM if feuding families ◦ Inappropriate “Requirements” for Tick box ACP

forms or Level of care Forms


Step two – Role of the Patient • Patient if capable is the decision maker and gives or

refuses consent after getting information to make an informed consent

• Capable Patient may also ACP by • Choosing in advance an SDM by preparing a POAPC or • Confirm that he/she satisfied with SDM in HCCA

Hierarchy to act and • Express wishes about future care and communicate

values and beliefs


Patient / SDM must give or refuse consent before treatment except in an emergency

Only patient can ACP in any way • SDM cannot ACP although can care plan in

context of patients current health condition which may include making decision about health problems that the patient is likely to have in the future given the patient’s current health condition, and……may, in addition, provide for withholding or withdrawal of treatment in light of patient’s current health condition


Mistaken belief that attorney in POAPC is only SDM

ACP wishes being wrongly treated as consents (decisions)

Patient being told that without written AC plan that requirement for full treatment options

SDM being asked to complete AC tools/ forms instead of capable patient


Step three – Role of the SDM If patient not capable then SDM must give or refuse

consent SDMs can only consent / refuse consent and not ACP SDMs must decide in context of patient’s current

condition and after getting information In making decisions for patient, SDM must determine if

wish expressed by patient applies to treatment decisions and if it does must follow wishes in making decision. If no wishes are known the SDM to decide what is in patient’s best interests.


Health practitioners must get CONSENTS which are DECISIONS that are obtained from patients after the patients have the necessary information on their PRESENT health condition on which to make an informed decision

Wishes are NOT decisions – Wishes are speculative and made without all the information. Wishes are speculative and based on “if” scenarios – eg., “If I have a terminal condition.. If I am in pain.. If I have dementia…” – not facts


A Person can give an informed consent to a treatment that takes place or is withheld in the future if the decision for that treatment is relevant considering the persons PRESENT HEALTH CONDITION

This is not Advance Care Planning but is Consent


HCCA, s. 11 1. Must relate to the treatment 2. Must be informed 3. Must be given voluntarily 4 Must not have been obtained through misrepresentation or fraud


Patient must receive information on the Nature of the treatment Expected Benefits of the treatment Material side effects Alternative courses of action Likely consequences of not having the

treatment


The health practitioner who proposes a treatment is required to form the opinion about the capacity of the patient to consent to treatment If a plan of treatment is proposed, one health practitioner on behalf of all the health practitioners involved in the plan may determine the patient’s capacity for treatment


Not the score on the MMSE or any other test Not a diagnosis It is an analysis/determination based on

conversations and observations with patient Just because a person is old, does NOT mean

that they lack decisional capacity Just because a person is a resident in a long-

term care home, does NOT mean that they are incapable to make treatment decisions


•developed by one or more Health practitioners •deals with one or more of health problems that

a person has and may, in addition, deal with one or more of the health problems that the person is likely to have in the future given the person’s current health condition, and •provides for the administration to the person of

various treatments or courses of treatment and may, in addition, provides for withholding or withdrawal of treatment in light of person’s current health condition.


•Plan of treatment ….(may) deal with one or more of the health problems that the person is likely to have in the future given the person’s current health condition, and •……may, in addition, provide for withholding

or withdrawal of treatment in light of person’s current health condition


Describes care and treatment that a person wants in the future when he or she is no longer mentally capable for decision-making about treatment - WISHES May focus on end of life care or also include wishes about care and treatment over the course of life May provide information on patients values and beliefs to guide the SDM’s decision-making when the patient is mentally incapable


Does not need to be in writing except appointment of specific SDM

Wishes may be expressed at any time that a patient is mentally capable in respect to decisions about the subject of the wish Later wishes, however communicated, expressed while capable prevail over earlier wishes This is true even if the previous wishes were in writing and the later wishes are oral


Wishes change, particularly as health condition changes Wishes may be communicated by the patient to their future SDM that are different than the wishes earlier expressed by the patient to the health team Not possible to anticipate given illness Vague language leading to misinterpretation Treatments change as science advances so wishes would likely have been different if could anticipate advances



• Wishes can be expressed ORALLY • Wishes can be expressed in WRITING (a) in a Power of Attorney for Personal Care (b) in a Written “Advance Directive” or “Living Will” (c) in any other written format • Wishes can be expressed by ANY OTHER MEANS (eg. communication board)


• Some people may not want to write down wishes but will want to express wishes orally • Oral wishes are as valid as written wishes • Written wishes may be changed by later oral wishes • Oral wishes may be recorded in chart or plan of care • Patients CANNOT be required to complete any hospital or long term care home advance directive forms if they do not want to put their wishes in writing or want to use their OWN method of ACP or do not want to express any wishes at all

Advance Directive/Living Will - only mentioned in the legislation as “Wishes”

Not a specific format- Usually just a statement of wishes about health care and no appointment of SDM

Only POAPC gives authority to name SDM


The DNR Confirmation Form is NOT an Advance Directive but is a Confirmation of a Consent to DNR/ Confirmation of Refusal of Consent to resuscitation treatment

It is a confirmation of the consent that resulted from the discussion between the health provider and the Patient, if capable, or the patient’s SDM, if the patient is not capable



• Wishes/advance care plans are directions to future SDMs – NOT to health practitioners except in an emergency • Wishes, whether written, oral or expressed in any other manner, are interpreted by SDMs as health providers always need to get consent from capable patients or SDM if patient is incapable


1. Guardian of person 2. Attorney in POAPC 3. Representative appointed by the Consent and Capacity Board 4. Spouse or partner 5. Child or parent or CAS (person with right of custody) 6. Parent with right of access 7. Brother or sister 8. Any other relative 9. Office of the Public Guardian and Trustee


• List is hierarchical • All persons on same level have equal right to be SDM (ie. all brothers and sisters equally rank) • Person ALWAYS has SDM if incapable as OPGT is SDM if person has no one higher on hierarchy or if conflict between equal ranking SDMs


The person highest in the hierarchy may give or refuse consent only if he or she is: a) Capable in respect to the treatment b) At least 16 years old unless the parent of the incapable person c) Not prohibited by a court order or separation agreement from acting as SDM d) Available e) Willing to act as SDM

SDM is the “interpreter” of the wishes and must determine ◦ whether the wishes of the patient were expressed

when the patient was still capable (and were expressed voluntarily); ◦ whether the wishes are the last known capable

wishes or whether the patient changed his/ her mind when still capable, ◦ what the patient meant in that wish; ◦ and whether the wishes are applicable to the

particular decision at hand


Health practitioners need to TALK with the SDM to discuss his/ her understanding of the wishes expressed and whether the wishes ( if the last capable wishes), are applicable to the decision at hand – OBLIGATION OF HEALTH PRACTITIONER TO DO SO

The SDM may go to the Consent and Capacity Board if the wishes are not clear, if the SDM wants to depart from following the wish


If a Health Practitioner (HP) doubts that SDM is fulfilling his/her role: ◦ Check if SDM understands the patients condition ◦ Check if SDM appreciates implications of the

illness, treatments, risks, benefits for the patient HP get a second opinion about own interpretation

of illness and treatment options for the patient HP make Application to Consent and Capacity

Board to direct SDM to follow advance wish of patient or act in best interests or otherwise be removed


Consent to Plan of Treatment – Decisions Current health condition, where the Implications are known

Advance Care Plan - Wishes Future health condition the implications for which may not be easily known to the person

Credit - Chris Sherwood


judith wahl advocacy centre for the elderly [email protected] · 2013-04-10 · legal advice and...

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