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Advance care planning in Ontario: how it works

Advance care planning does not purport to be – or to replace – consent to treatment, but is a process of planning and expressing wishes that will guide consent decisions made by another person when it comes to future health-care choices, writes Toronto health lawyer Lonny Rosen in the Canadian Bar Association health newsletter.

Almost every province and territory in Canada has enacted legislation that codifies the right of a capable adult to make arrangements about personal choices for future health care, Rosen, partner with Rosen Sunshine LLP, writes in the article.

“It is important to recognize, however, that there is great variation in the law from province to province, with some provinces permitting documents which contain health-care directives to provide valid consent to the health-care treatment described in the document and other provinces, such as Ontario, requiring consent to come from a person’s substitute decision-maker, rather than from a document,” he writes in the article.

In Ontario, the statute that governs consent and capacity to make health-care decisions is the Health Care Consent Act, 1996 (HCCA). Under the act if a person is capable of consenting to treatment, he or she is required to do so before treatment is provided, says Rosen.

When a person is unable to make the decision on their own, for whatever reason, “then consent must be given or refused on that person’s behalf by his or her substitute decision-maker (SDM),” Rosen writes in the article. “Every person has an SDM without having to take any steps to appoint one, as the HCCA sets out a hierarchy of decision-makers. The Substitute Decisions Act, 1992 also contains provisions for the appointment of substitute decision-makers, including an attorney appointed pursuant to a power of attorney for personal care.”

The HCCA sets out rules for decision-making which provide, inter alia, that the SDM must give or refuse consent in accordance with any prior expressed wish that is, “applicable to the circumstances, expressed by the incapable person while capable and after attaining 16 years of age, and is known to the SDM,” writes Rosen.

The HCCA also provides that if there is no such wish, or such wish is unknown, or impossible to comply with, the SDM shall act in the incapable person’s best interests, which comprise a range of considerations, including the values and beliefs held by the person while capable and the likelihood of benefit or harm from the proposed treatment.

The legislative scheme outlined above facilitates advance care planning and permits the execution of a power of attorney for personal care (POAPC). The HCCA provides, “that the POAPC may incorporate wishes, which will guide (and even bind) the attorney in making decisions on behalf of the grantor of the POAPC in the event that he or she becomes incapable of making a decision,” writes Rosen.

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