Health Care Consent Act (HCCA) (ON)

Primer

The Health Care Consent Act (HCCA) applies to all aspects of health care in Ontario and provides rules for obtaining informed, voluntary consent from a substitute decision maker. Section 4 of the HCCA outlines the guidelines for consent and capacity (one shall not administer treatment without a patient's consent - otherwise it is battery or assault). The HCCA is what allows you to determine whether treatment can be imposed on an individual if you do not think they are capable. Only a finding of incapacity under the HCCA allows you to treat the patient against their wishes (i.e. - involuntary treatment). Remember, capacity is treatment-specific.

Substitute Decision Makers (SDMs)

In Ontario, if a patient is found incapable, you must find a Substitute Decision Maker (SDM) to give consent on the patient's behalf. The hierarchy of SDMs is dictated by the Healthcare Consent Act (HCCA). Here are some points to consider when an SDM is involved:

  • The SDM(s) must be available, capable, and willing
  • Multiple SDMs of the same rank can be involved
  • If SDMs of the same rank disagree on a treatment (i.e. - feuding SDMs) and cannot come to an agreement, then the decision will automatically go to the Public Guardian and Trustee (PGT). Therefore, it is in the existing SDM(s) best interest to come towards an agreed decision.
  • SDMs must comply with the most recent expressed capable wishes of the patient (or if unknown, the best interests)
  • If the MD thinks the SDM is not acting in accordance with principles of HCCA, the PGT can be contacted
  • Even if an SDM is involved, you should still involve the patient as much as possible! (e.g. - tell patient that SDM will assist them and make the final decision, and still involve patient as much as possible in treatment discussions)
  • If a patient disagrees with having a specific SDM, the MD can try to find another substitute of the same or senior rank, or advise the patient to apply for a review through a Consent and Capacity Board (CCB) Hearing

Substitute Decision Maker (SDM) Hierarchy

Section 20(1) of the HCCA ranks SDMs in the following order:
  1. Guardian
  2. Power of Attorney (POA) for personal care
  3. Representative from Consent/Capacity Board
  4. Spouse [if it is an unmarried partner, they have to be in a conjugal (i.e. - living together) relationship for at least 1 year, and be the “most important primary person in both individuals' lives”]
  5. Child/parent/agency entitled instead of another parent (e.g. - one parent has custody of a child over another, and custody is greater than a parent with only right of access)
  6. Parent who has right of access only
  7. Sibling
  8. Relative (e.g. - blood-relative, marriage, adoptive, step-parents, in-laws)
  9. Public Guardian and Trustee (PGT) (i.e. - a government representative)