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ELOM10 Ethical, Legal, and Organizational Medicine Ethical and Legal Issues in Canadian Medicine Toronto Notes 2019
Aid to Capacity Evaluation
J Gen Intern Med 1999;14(1):27-34
• Ability to understand the medical problem
• Ability to understand the proposed
treatment
• Ability to understand the alternatives (if
any) to the proposed treatment
• Ability to understand the option of refusing
treatment or of it being withheld or
withdrawn
• Ability to appreciate the reasonably
foreseeable consequences of accepting the
proposed treatment
• Ability to appreciate the reasonably
foreseeable consequences of refusing the
proposed treatment
• Ability to make a decision that is not
substantially based on delusions or depression
Most provinces have legislated hierarchies for SDMs; the hierarchy in Ontario is:
• Legally appointed guardian
• Appointed attorney for personal care, if
a power of attorney confers authority for
treatment consent (see Powers of Attorney)
• Representative appointed by the Consent
and Capacity Board
• Spouse or common law partner
• Child (age 16 or older) or parent (unless the
parent has only a right of access)
• Parent with only a right of access
• Sibling
• Other relative(s)
• Public guardian and trustee
Other Types of Capacity Not Covered by the HCCA
• Testamentary (ability to make a will)
• Fitness (ability to stand trial)
• Financial (ability to manage property – Form 21 of the Mental Health Act)
• Personal (ability to care for oneself on a daily basis)
• Substitute consent for a procedure whose primary purpose is research, sterilization for non therapeutic purposes, or removal of organs or tissue for transplantation (does not apply to those already declared dead)
– alternatives to the treatment
– the consequences of accepting and rejecting the treatment – the risks and benefits of the various options
3. for the appreciation needed for decision-making capacity, a person must:
– acknowledge the condition that affects them
– be able to assess how the various options would affect them
– be able to reach a decision and adhere to it, and make a choice, not based primarily upon
delusional belief • generalimpressions
• input from psychiatrists, neurologists, etc.
• employ “Aid to Capacity Evaluation” or any other capacity assessment tool/guideline
• adecisionofincapacitymaywarrantfurtherassessmentbypsychiatrist(s),legalreviewboards(e.g.in
Ontario, the Consent and Capacity Review Board), or the courts
• iffoundincapablebytheConsentandCapacityReviewBoard,patientmustreceivenoticeoftheir
ability to pursue judicial review (and essentially appeal the determination)
Treatment of the Incapable Patient in a Non-Emergent Situation
• obtaininformedconsentfromSDM
• anincapablepatientcanonlybedetainedagainsthis/herwilltoreceivetreatmentifhe/shemeets
criteria for certification under the Mental Health Act (see Psychiatry, PS51); in such a situation: ■ document assessment in chart
■ notify patient of assessment using appropriate Mental Health Form(s) (Form 42 in Ontario) ■ notify Rights Advisor
Substitute Decision-Makers
• SDMsmustfollowthefollowingprincipleswhengivinginformedconsent:
■ act in accordance with wishes previously expressed by the patient while capable
■ if wishes unknown, act in the patient’s best interest, taking the following into account:
1. values and beliefs held by the patient while capable
2. whether well-being is likely to improve with vs. without treatment
3. whether the expected benefit outweighs the risk of harm
4. whether a less intrusive treatment would be as beneficial as the one proposed
• thefinaldecisionoftheSDMmayandshouldbechallengedbytheMDiftheMDbelievestheSDMis not abiding by the above principles
Instructional Advance Directives
• allowpatientstoexertcontroloverhis/hercareoncetheyarenolongercapable
• thepatientsetsouthis/herdecisionsaboutfuturehealthcare,includingwhohe/shewouldallowto
make treatment decisions on his/her behalf and what types of interventions he/she would want
• takeseffectoncethepatientisincapablewithrespecttotreatmentdecisions
• inOntario,apersoncanappointapowerofattorneyforpersonalcaretocarryouthis/heradvance
directives
■ the legal threshold to appoint a Power of Attorney for personal care is intentionally set lower than
the legal threshold for capacity to consent to many complex medical treatments. This allows a patient that lacks treatment capacity to appoint a person of their choosing to make the decision for them
• patientsshouldbeencouragedtoreviewthesedocumentswiththeirfamilyandphysiciansandto reevaluate them often to ensure they are current with their wishes
POWERS OF ATTORNEY
• allGuardiansandAttorneyshavefiduciarydutiesforthedependentperson
Definitions
• PowerofAttorneyforPersonalCare
■ a legal document in which one person gives another the authority to make personal care decisions (health care, nutrition, shelter, clothing, hygiene, and safety) on their behalf if they become mentally incapable
• GuardianofthePerson
■ someone who is appointed by the Court to make decisions on behalf of an incapable person in some or all areas of personal care, in the absence of a POA for personal care
• ContinuingPowerofAttorneyforProperty
■ legal document in which a person gives another the legal authority to make decisions about their finances if they become unable to make those decisions
• GuardianofProperty
■ someone who is appointed by the Public Guardian and Trustee or the Courts to look after an incapable person’s property or finances
• PublicGuardianandTrustee
■ acts as a SDM of last resort on behalf of mentally incapable people who do not have another individual to act on their behalf