1. Consent & Capacity: A Case Study Adam R. Little PENNY KARYG “Let me explain the nose job procedure.” @barrie_lawyer

2. Bill M. Age 26 Full-time student and factory worker Has long-term girlfriend, but lives at home with parents

3. Collision – October 20, 2008

12. Bill M. Comatose and alone on arrival to hospital Requires urgent medical treatment What can health care providers do?

13. Health Care Consent Act, 1996

14. Consent No treatment without proper consent Except for emergency treatment Consent must come from capable person or a Substitute Decision Maker Consent must be “informed”

15. Informed Consent “Informed” means understanding: Nature of treatment Expected benefits Material risks and side effects Alternative courses of action Likely consequence of not having treatment

17. Informed Consent Informed consent does not necessarily need to be expressed, it can be implied as well

19. Age and Capacity Under HCCA, presumed that every person is capable of consenting to treatment, regardless of their age

20. Who Determines Capacity to Consent To Treatment? Usually, the health care practitioner providing the treatment makes the determination Based on their assessment of the patient

21. How Is Capacity Determined? Must consider two part test: Is patient able to understand the information that is relevant to making a decision about treatment? Is patient able to appreciate the reasonably foreseeable consequences of a decision or lack of decision?

22. Varying Capacity Capacity is not static – it can fluctuate Person may be incapable with respect to some treatments, and capable with respect to others

23. Who Makes Decisions for Incapable Patients? Hierarchy of SDM’s (must be 16 and capable themselves): 1) Guardian of the person 2) Attorney for personal care 3) Spouse 4) Child/parent 5) Sibling 6) Any other blood relative 7) Public Guardian or Trustee

24. Who Makes Decisions for Incapable Patients? If person lower on list is present, they may give consent if they believe no other person higher on list would object If two people tied on list cannot agree on consent, the PGT will intervene and make the decision

25. Health Care Consent Flowchart

26. Bill M. Out of hospital and recovering Severe cognitive deficits Requires 24/7 supervision Who can make his decisions for him?

27. Substitute Decisions Act, 1992

28. What is “Capacity”? Capacity relates to the mental capacity to make decisions Two parts to decision making: (i) understanding the information relevant to making a decision; and (ii) appreciating the consequences of a decision

29. What Kinds of Decisions are we Concerned With? Two main categories: – Personal care – Property

30. Presumption of Capacity Everyone 16 and older is presumed to have capacity for treatment and personal care [NB: different from HCCA] Everyone 18 and older is presumed to have capacity to make decisions about property

31. Capacity to Manage Property Person who is 18 years old is presumed to have capacity to enter contracts Incapacity may not be obvious to third parties Without capacity determination, risk of injured person incurring debts and liabilities

32. When is a Capacity Assessment Required? Whenever there is a question or concern about whether a person has capacity, prudent to obtain a capacity assessment In MVA cases, usually funded by the AB insurer

33. Capacity Assessments Capacity assessor is retained for Bill M. A social worker who has completed training with Capacity Assessment Office and is registered on government roster of assessors

34. Capacity Assessments Assessment proceeds, and Bill is asked to identify his income, assets, debts, etc. Merits of Bill’s decision making is not at issue – only his ability to reason and process the information We are all entitled to make bad decisions, so long as we understand them!

35. Incapacity to Manage Property Section 6 of SDA: –Unable to understand information relevant to making a decision in management of property; OR –Unable to appreciate reasonably foreseeable consequences of decision or lack of decision

36. What Happens After a Finding of Incapacity to Manage Property? SDM required Either Power of Attorney or Guardian of Property (statutory or court appointed) SDM has authority to make all decisions except make a will

37. What Happens After a Finding of Incapacity to Manage Property? Statutory guardianship – where person is found to lack capacity to manage property, the PGT can be appointed as statutory guardian for property without the need for a court order Thereafter, a spouse or relative can apply to replace the PGT as statutory guardian

38. What Happens After a Finding of Incapacity to Manage Property? Statutory guardianship cannot be used to appoint a guardian for personal care In Bill’s case, he lacked capacity to manage either his property or his personal care Court order obtained appointing his sister as guardian

39. Power of Attorney Clients who lack capacity to make own decisions may still have capacity to grant a POA Test is lower than for capacity If person knows value of assets and obligations, and that their attorney can make decisions on their behalf, can grant a POA for property

40. Power of Attorney POA for Property If person knows value of assets and obligations, and that their attorney can make decisions on their behalf, can grant a POA for property

41. Power of Attorney POA for Personal Care If person understands the proposed attorney has a genuine concern for their welfare and appreciates the need for someone to make decisions on their behalf, can grant a POA for personal care

42. Power of Attorney Much easier process than appointing a guardian ALWAYS ask the capacity assessor to provide an opinion on the ability to grant a POA, where they find incapacity

43. Incapacity to Manage Personal Care Section 45 of SDA: –Unable to understand information relevant to making a decision re health care, nutrition, shelter, clothing, hygiene, or safety; OR –Unable to appreciate reasonably foreseeable consequences of decision or lack of decision

44. What Happens When Person is Found Incapable of Personal Care? Need SDM for care Power of attorney or guardian (no statutory guardianship available) Power to make all personal care decisions in areas of incapacity

45. What Happens if Capacity is Regained? Further capacity assessments are usually conducted over life span, if appropriate Court has power to terminate guardianship order POA can be revoked

46. Bill M. Case settled on eve of trial Capacity assessment was conducted Found capable – guardianship terminated No court approval needed Litigation guardian removed

47. Questions?

48. Consent & Capacity: A Case Study Adam R. Little “Let me explain the nose job procedure.” @barrie_lawyer