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LAW 3101B.docx

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Western University
Law 3101A/B
Robert Solomon

LAW 3101B Substitute Consent  Issue arises after it is determined that a patient lacks capacity to make decisions regarding treatment, personal assistance, admission, or property management decisions  Common Law principles around the issue, over turned by HCCA and SDA Part 1: Substitute Consent Under HCCA 1. General Principles  Substitute decision makers do not have a free hand in making personal care decisions. HCCA states how substitute makers are to be made  A Substitute decision maker must: - give or refuse consent accordance with the known expressed by the person while competent and over 16 - if no prior wish is known or it is impossible to comply with the wish, base consent on the incapable person’s best interest  Following shall be taken into consideration when determining best interests: - values and beliefs that are incapable person held when he or she was competent - any wishes expressed by the person while incapable or under 16 -whether the incapable person’s condition or well-being is likely to improve or not deteriorate further, with the treatment or without it - whether the benefits of the treatment outweigh the risks of harm to the patient - whether a less restrictive or intrusive treatment would be as beneficial as a proposed treatment  Before giving/refusing consent, a substitute is entitled to information necessary for making informed decisions.  HCCA doesn’t effect the law relating to substitute consent for research, non medical sterilization or removal of tissue (transplant)  A person with authority to consent may consent to necessary and ancillary treatments/admission to hospital (or other health facility)  If the incapable is or above 16 and refuses admission, the decision maker can only consent to admission if he or she is - the incapables court-appointed guardian, has been granted specific authority to consent the admission - the incapable persons power of authority for personal care for personal care, and power of authority grants specific authority to consent to that admission  A substitute can apply to the CCB for direction if incapables prior expressed wish, the applicability of that wish, or the grantors capability when it was expressed is unclear  A decision maker can apply to CBB for authority to treatments contrary to a wish expressed when patient was capable. - CBB grant application if its satisfied that he incapable, if now capable, would consent (likely result better than would have been anticipated)  Decision maker who acts in good faith with the Act cant be held civilly liable for consent of treatment or admission 2. Authority to Exercise Substitute Consent for Personal Care  Court Appointed Guardian of the Person  No appointment shall be made unless there is a finding that the persons is incapable to make decisions  Nor if there is less restrictive alternate  Public Guardian and Trustee (PGT) wont be appointed if there’s more available persons  Have ongoing decision making authority in regard to incapable until court terminates relationship  Guardian application requires proposed consent, guardianship plan, and statement signed indicating the incapable has consent of application  May be partial or full  Has authority to exercise custodial power over the person, make living arrangements, access information, make personal care and treatment decisions (admissions included)  Power of Authority for Personal Care  Persons must be 16 or older and competent to create a POA for personal care  Grantors can name who they wish (must be 16 or older willing, available and competent)  POA is written document that must be executed with two witness’ (each must sign)  Act prohibits certain people from serving as witness’ (D.A, family)  If conditions breached, renders POA ineffective  Courts mandated authority to declare POA effective if are satisfied actions in grantors interest  POA provides no decision-making authority, unless grantors has been found to be incapable  POA contains provisions that requires grantor’s incapacity to be confirmed by assessor  Only effective for admission to a care facility or personal assistance service, if assessor found reasonable grounds  POA terminated if attorney dies, resigns or becomes incapable, court appoints a guardian of the person, or grantors creates new POA or revokes  Revocation must be made in writing and executed in the same way as the POA  Personal Representative  Incapable person may request that he CBB name an individual to be their representative to make decisions regarding care  A third person may also apply to the CCB to be named a personal representative of the incapable 3. Safeguards on Substitute Consent for Personal Care  Health practitioners can apply to the CBB if they believe that a substitute decision maker didn’t act in accordance with wishes or in best interests  PGT has duty to investigate any allegation that a person who is incapable may be suffering or might be at risk of illness/injury, of liberty or personal security  If PGT has reasonable grounds to believe the persons is incapable and has serious adverse effects, PGT must apply to the courts for an order appointing him or her as the incapable person’s temporary guardian  Application can be made to the courts to resolve any question regarding of POA  Application may be made by persons guardian, attorney under POA, dependent, guardian of property, or attorney under CPA Janzen v Janzen  E.J fell into a persistent vegetative state after suffering a sudden bout of sever angioedema. Doctors advised E.Js wife and family that there was no chance to recover. Recommended life support would come off and E.J die peacefully  Wife wanted to follow the doctors advise, the sister wanted to delay the decision hoping he might improve. When the sister applied to the courts to be appointed his temporary guardian of personal care for 45 days, wife submitted counter  Both parties had interest of E.j, court concluded that the wife’s guardianship plan was more likely to win  Courts defined “well being” to include the patients quality of life. With granting the wife’s application, courts noted: her plan was in accord with E.Js expressed wishes not to have his life artificially prolonged if there was no recovery, no evidence that medical intervention would improve his state; therefore the wife’s approach is less intrusive and more comfortable for E.J Part 2: Substitute Decision Making for Property 1. Exercising Substitute Consent for Property  Any persons with limited exceptions may apply to the court to become an incapable persons court appointed guardian of property  POA for property under Powers of Attorney Act 1990  A person who is 18 or older and competent may create a continuing power of authority for property under section 5 and 7(1) of SDA.  POA comes into play when executed. If the grantor only wants the POA to take effect when they become incapable  If a patient in a psychiatric facility is certified under the MHA to be incapable of managing property, the PGT will become the person’s statutory guardian of property  A person may asked an assessor to asses their ability to manage property, or that of a third party to determine if the PGT should be the persons statutory guardian of property.  If the assessor find the person to be incapable of managing property, they may issue a certification of incapabili
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