Health Care Consent*
*Adapted from the Advocacy Centre for the Elderly Tip Sheet #2 – Hierarchy of Substitute Decision Makers (SDMs) in the Health Care Consent Act
Prinable PDF of Health Care Consent brochure
1. Requirement for Informed Consent
Before providing any treatments to a patient, HEALTH PRACTITIONERS have the legal and ethical duty to obtain INFORMED CONSENT from a patient, if the patient is MENTALLY CAPABLE to make the decision about the particular treatment being offered.
- The health practitioner proposing the treatment to the patient is responsible for determining whether the patient is mentally capable to consent to the treatment offered. If a plan of treatment is proposed to the patient, one health practitioner on behalf of all the health practitioners involved in the plan, may determine the patient’s capacity with respect to the treatments referred to in the plan.
- If the health practitioner is of the opinion that the patient is not mentally capable to consent to the particular treatment, then the health practitioner must turn to the patient’s SUBSTITUTE DECISION MAKER (SDM) who gives or refuses the informed consent on behalf of the patient.
- In an EMERGENCY, if the patient is incapable or unable to communicate with the health practitioner and a delay to obtain informed consent would put the patient at risk, health practitioners do not need consent in order to treat, but they must follow any known WISHES of the patient in respect to treatment.
2. Who is a Patient’s Substitute Decision Maker for Health Care?
- A patient needs to understand who would be his/her SDM for health care if he/she became mentally incapable to make health decisions.
- Every patient in Ontario AUTOMATICALLY has a person who will have legal authority to act as his/her SDM if they become incapable.
3. The Hierarchy of Substitute Decision Makers (SDMs)
Your SDM is the person or persons who are the highest ranking in the hierarchy below AND meet the requirements to act as Substitute Decision Maker.
- Guardian of the person
- Attorney named in power of attorney for personal care (POAPC)
- Representative appointed by the consent and capacity board
- Spouse or partner
- Child or parent or CAS (person with right of custody)*
- Parent with right of access
- Brother or sister*
- Any other relative*
- Office of the Public Guardian and Trustee
*When a person has multiple family members at the same level on the hierarchy (e.g., several children) health care providers cannot choose or require that only one act as the SDM. Equally ranked SDMs may amongst themselves choose to have one or more of them act as the SDM. If more than one equally ranked SDM wants to act they all must agree on any decisions for you. If they cannot agree, then the health care provider would turn to the Public Guardian and Trustee for your health care decisions.
4. How to use the Hierarchy
- Health practitioners should start at the top of the hierarchy and work their way down, making inquiries to ensure they are speaking with the right person or persons.
- A patient’s SDM is the person or persons in that particular patient’s life who are the highest ranking in the hierarchy that meet the “requirements” (as set out below) to act as SDM.
- If the highest ranking person in the patient’s life does not meet the requirements, the Health practitioner must turn to the NEXT highest ranking SDM that meets the requirements.
- If there is more than one person at any level in the hierarchy who meet the requirements to be SDM, then all those people are entitled to act as SDM for the patient. They may all decide together or they may decide amongst themselves as to which of them will act as the SDM. The health practitioner cannot choose which of the equal ranking SDMs may act.
- A patient, if mentally incapable, ALWAYS has an SDM even if he or she hasn’t prepared a Power of Attorney for Personal Care and doesn’t have any family to act as SDM. The public guardian and Trustee is the patient’s SDM if there is no one higher on the hierarchy list that meets the requirements to be SDM. Documents that purport to override this default to the PGT as last resort substitute decision maker are neither valid nor legally enforceable.
- If equal ranking SDMs cannot agree on a decision for the patient, the health practitioner MUST turn to the Public Guardian and Trustee (PGT) for the decision for the patient and the PGT is required to make this decision.
5. Requirements for the SDM
The SDM in the list may give or refuse consent for treatment, admission to a long-term care facility, or personal assistance services in a long-term care facility only if he or she is:
- Capable with respect to treatment proposed,
- 16 years old, unless he or she is the parent of the incapable person,
- There is no court order or separation agreement prohibiting access to the incapable person or giving or refusing consent on his or her behalf,
- Is available, and
- Is willing to assume the responsibility of giving or refusing consent
For More Information Please Contact:
519-751-5544, ext. 2395