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Consent n Capacity Presentation at Toronto Rehab

  • April 8, 2016

On Thursday March 31, 2016, Will Davidson LLP sponsored a Lunch and Learn at the Toronto Rehab Lyndhurst Centre.  Will Davidson LLP, Personal Injury Lawyers were present to address any questions staff members encounter on a regular basis. The following is a summary of the important information provided at the Lunch and Learn.


Individuals are presumed capable of providing consent to treatment, unless there are reasonable grounds to suspect incapacity. Before administering treatment, health care professionals must obtain informed consent from their patients; failure to do so is in contravention of Ontario law and professional standards.


The court in Neto v. Klukach determined that the test for capacity does not involve a determination as to whether the patient has made a reasonable choice, but whether an individual is capable under the law. It is important to note that a person’s capacity may change, therefore it is important to assess capacity on an ongoing basis.

The court in Starson v. Swayze, stated that capacity involves a two part inquiry
(1) The cognitive ability to understand the relevant information being given
(2) (2) Determine whether a person can appreciate the reasonably foreseeable consequences of a decision or lack of one

Exceptions to Informed Consent

(1) Exception to informed consent for treatment:
o The only exception to informed consent for treatment, is treatment in an emergency situation
(2) Exception to informed consent for admission to a care facility:
o The only exception to informed consent for admission to a care facility is in a crisis situation

How is Consent Conveyed?

Consent can be express or implied. Express consent is direct and unequivocal, while implied consent is inferred from words or behaviour surrounding the circumstances.

How is Capacity Assessed?

Capacity can often be assessed by direct observation. For example, recognizing whether a person appears confused, depressed or unaware. Further, information given by family members or caregivers may help in making the determination of capacity.
What Happens if a Person is Incapable of Providing Consent?

1. The person must be told that they have been determined incapable of making the care decision.
2. The person must be advised of his or her legal rights, unless the situation is an emergency or crisis situation
3. The person must be informed that a substitute decision maker (“SDM”) will make the decision on his or her behalf
4. The person must be told that that he or she has a right to review the finding of incapacity or to request an alternative or additional Substitute Decision Maker to be appointed by applying to the Consent and Capacity Board
5. The person’s Substitute Decision Maker will be identified and provided with all the information needed to make a decision

Can a Finding of Incapacity be Challenged?

Yes, a finding of incapacity can be challenged. A person has the right to challenge the finding by appealing to the Consent and Capacity Board.

Substitute Decision Makers

Definition: A person who makes decisions on another’s behalf when they become incapable.

Role of a SDM: To make decisions in the best interests of the incapable person.

Who can be a SDM: Anyone except a person who is paid to provide care, a personal that is mentally incapable or an individual under the age of 16.

Power of SDM: A SDM has the power to make decisions about all aspects of an individuals care. This includes health, shelter, clothing, nutrition, safety and hygiene. A person can appoint one or more SDM’s and appoint them jointly or separately for different aspects of care.

How to Appoint a SDM: The appointment of an SDM must be in writing, signed and witnessed. In order to be valid, the individual appointing an SDM must be capable of doing so and understand what it means.

What Happens if You do not Appoint a SDM?

If an individual does not appoint an SDM then Section 20(1) of the Health Care Consent Act becomes relevant. Section 20(1) requires that a health care professional look to the hierarchy of decision makers listed in this section. The highest-ranking individual who is available, capable and willing to make these decisions will become a SDM.
• The hierarchy is as follows:
o Guardian appointed by the court with authority for health care decisions
o Attorney for personal care
o Representative appointed by the Consent and Capacity Board
o Spouse, common-law spouse or partner
o Child (if they are over the age of 16) or parent
o Parent with right of access only-Custodial parents rank ahead of non-custodial parents
o Brother or sister
o Any other relative by blood, marriage or adoption
o The Office of the Public Guardian and Trustee

Health care professionals in attendance gained some in-depth knowledge on the topic of Consent and Capacity. Thank you to all who attended this room filled event. Our support for Toronto Rehab continues on June 13 2016, we will tee off at Maple Downs Golf and Country Club. All proceeds go to Toronto Rehab. Click here  to tee up in support of this cause.

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