1. Welcome participants to the session.
Notes to Facilitator:
Welcome participants to the session.
Remind participants to sign the attendance sheet
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2. Briefly review the session’s objectives
Notes to Facilitator:
Briefly review the session’s objectives
Make note to the participants that this session, and the subsequent modules, have been designed as an introduction to health care consent and ACP in Ontario.
While individual cases make help to highlight specific topics this education is not intended to solve individual cases
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3. Notes to Facilitator:
Inform participants you are going to start off with two quick table activities.
Give out activities A and B and allow participants 1-2 minutes to work through them in small groups
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4. Explanation to support discussion:
Notes to Facilitator:
Take up Activity A
Explanation to support discussion:
The Substitute Decisions Act and Health Care Consent Act govern health care consent and ACP in Ontario
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5. Explanation to support discussion:
Notes to Facilitator:
Take up Activity B
Explanation to support discussion:
The only term used within the Health Care Consent Act is ‘expressing wishes’
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6. The only exception to when consent is not needed is in emergencies.
Under the Health Care Consent Act, health care providers must obtain informed consent from a mentally capable resident or their Substitute Decision Maker(s) (SDM(s)) prior to initiating care or treatment of any kind
The only exception to when consent is not needed is in emergencies.
Health care providers must obtain informed consent for anything that is done for: therapeutic, preventative, diagnostic, cosmetic, or other health related purpose. This includes a course of treatment or a plan of treatment.
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7. Must relate to the treatment Must be given voluntarily
Under the Health Care Consent Act, consent conversations must have the following elements for it to be considered valid:
Must relate to the treatment
Must be given voluntarily
Must not be obtained through misinterpretation or fraud and,
The consent must be informed
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8. Nature of the treatment Expected benefits of the treatment
Under the Health Care Consent Act health practitioners need to obtain informed consent from a mentally capable person
Consent is considered to be informed if the following information is given:
Nature of the treatment
Expected benefits of the treatment
Materials risks & side effects of the treatment
Alternative courses of action and,
The likely consequences of not having the treatment
This information also needs to be communicated in a matter that a reasonable person can understand and must also be given the opportunity to ask questions and receive responses to their questions.
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9. Under the Health Care Consent Act, health care providers must obtain informed consent from a mentally capable resident or their SDM(s) prior to initiating care or treatment of any kind in any situation (except in emergencies).
In Ontario, Advance Care Planning is not consent, but is a process that can help prepare residents and their potential future SDM(s) for health care decision making
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10. This first step can be done by either:
The Substitute Decisions Act and Health Care Consent Act govern ACP in Ontario.
The first step of ACP is a mentally capable resident identifying his/her future SDM(s), the resident/residents who will make health care decisions on their behalf if they ever become mentally incapable to do so for themselves.
This first step can be done by either:
Confirming his/her satisfaction with their default/ automatic SDM(s) in the SDM hierarchy list in the Health Care Consent Act OR
Choosing someone else to act as SDM(s) by preparing a Power of Attorney for Personal Care (a formal written document).
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11. Some examples of what someone may share may be:
The second step of the ACP process involves the mentally capable resident sharing his/her wishes, values and beliefs through conversations with their SDM(s) and others that clarify his/her wishes, values and beliefs, and more generally how he/she would like to be cared for in the event of mental incapacity.
Some examples of what someone may share may be:
What is important to that person with respect to his or her health?
What does quality of life mean/or look like to the resident?
These conversations (the wishes and explanations of a resident’s values, beliefs) guide the SDM(s) to understand:
Who the resident is,
How they would make choices for themselves,
What they think is important and what would have influenced their decision making.
Additional Notes (if needed)
What do we mean by wishes, values and beliefs?
Wishes – are speculations or ‘what if’ scenarios (e.g., if I am in pain…, if that happens to me…); wishes are based on beliefs, values and goals; wishes may be based on a known condition
Beliefs – are what an individual accepts as true or real; a firmly held opinion (e.g., religious; no blood transfusions for Jehovah’s Witness; maintaining consciousness is essential to my life so I won’t take medication that affects my consciousness)
Values – are an individual’s judgement of what is important in life (e.g., dignity – to be clean, tidy; independence – to be able to care for themselves)
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12. ACP is not a document/form/checklist to be completed
In order to fully understand ACP and its connection with health care consent in Ontario, it is important to also look at some of the common misunderstanding about ACP
First, ACP is not about making health care decisions/ is not informed consent to treatment
Except in emergencies, health care providers must always obtain informed consent from resident or an incapable resident’s SDM(s) prior to administering treatment, even if the individual has engaged in ACP.
Advance Care Planning wishes, values beliefs of the patient may be used to inform the conversation about consent although it is not the final consent to any plan of treatment for a person
ACP is not a document/form/checklist to be completed
ACP IS about identifying an SDM(s) and sharing wishes, values and beliefs. It is a process that can help future SDM(s) to guide potential future decision making.
Additional Notes (if needed):
Other examples of what ACP is not:
One conversation only about treatment options with a physician or other Health Care Provider
Strictly a refusal of medical treatments (e.g., CPR)
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13. Treatment taking place in the future is not necessarily ACP.
Health Care Providers may get mixed up when they think of a plan of treatment that addresses something that will come to play in the future so they may want to call it “advance care planning” rather than a plan of treatment. 
Health care providers can get informed consent for treatment taking place in the future as long as it relates to the resident’s present health condition
A plan of treatment is defined as a plan that is developed by one or more health care practitioners to deal with health problems that are present or likely in the future given the resident’s current health condition. Plans of treatment provide for the administration of various treatments or courses of treatment, including withdrawal and withholding of life-sustaining or life-prolonging treatment, in light of the resident’s current health condition.
This is not ACP but is decision making and must meet the requirements of consent for it to be valid.
Let’s work through an example together to support this concept: A resident has ALS and is provided with all the information necessary to make an informed decision about ventilation. The resident is still able to breathe but it is inevitable that the resident will require ventilation sometime in the future due to his current health care condition: ALS. This resident can consent to a plan of treatment that either:
- provides ventilation
- withholds ventilation
- withdraws ventilation following a trial period
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14. The terms “Advance Directives” and “Living Wills” are not legally defined in Ontario law.
While heard in common language, these terms have been borrowed from other jurisdictions, countries or provinces.
The use of these terms, likely a result of having different meanings in different provinces, has led to confusion and misinterpretation in Ontario. On this note, there is work underway provincially focused on language which aims to provide clarity and promote consistent practice.   
It is suggested that the terms “Advance Directives” and “Living Wills” not be used when referring to ACP to help avoid incorrect practices and misunderstanding
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15.  Continued on next page
This  visual is to assist in understanding of how/where ACP fits in relation to health care decision making in Ontario.
Advance Care Planning
Focus: The future clinical context/future care
Who: Only mentally capable people can ACP for themselves (ie. SDM(s) cannot appoint a new SDM for someone or express wishes)
Outcome(s):
a) To identify the SDM(s),
b) To identify resident wishes, values and beliefs, and
c) To prepare the SDM(s) for future decision-making.
ACP is the process of talking about wishes, values and beliefs that would guide the future SDM(s) when they would be called upon to make treatment decisions on a resident’s behalf.
The ACP process is not focused on consent/making health care decisions but the information shared within these conversations could be used in the future to inform goals of care discussions and/or consent discussions
Once the threshold of treatment decision making is crossed, the conversations are no longer ACP conversations, but rather are focused on the current care and are either Goals of Care Discussions or Decision Making/Consent Discussions
Goals of Care Discussion (GoC)
Focus: The current clinical context/current care; These conversations are likely triggered by a treatment decision needing to be made.
Who: Mentally capable resident or SDM(s) if resident is not mentally capable
Outcome(s): These discussions are often focused on exploring the resident’s goals, assesses readiness and prepares for decision-making.
 Continued on next page
Goals of Care Discussions are generally a communication framework that assists in understanding and assessing the resident’s goals for care. (i.e. personal and clinical goals) based on a current clinical context
The information from these conversations are used in the moment to directly inform consent discussions
Health Care Consent (HCC) or Decision-making Discussion
Focus: The current clinical context/current care
Outcome: These discussions always result in care or treatment decision(s). Health care providers are required to get informed consent from a capable resident prior to any care or treatment. These conversations are focused on a decision regarding a proposed treatment(s) or care plan based on a resident’s current condition.
ACP conversations can help inform goals of care/decision making discussions. But, even if resident’s have expressed wishes this does not override the need for consent and should not limit the treatment options offered. Rather, this process can help residents and/or SDM(s) have valuable information that can help inform the decision making process.
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16. Give group 1-2 minute to work through the worksheet.
Notes to Facilitator:
Give group 1-2 minute to work through the worksheet.
Take the opportunity to review the responses together.
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17. Only capable residents can participate in ACP:
SDM(s) cannot complete a Power of Attorney for Personal Care or express new wishes on behalf of a resident
SDM(s) can only provide consent on behalf of the resident when the resident is found to be mentally incapable
ACP is not consent:
Health care providers must always obtain consent from an individual or SDM(s) (if individual is mentally incapable) prior to administering treatment, even if the individual has engaged in ACP.
ACP is a process to help the resident and their SDM(s) prepare for potential future health care decision making.
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18. Welcome participants to the session.
Notes to Facilitator:
Welcome participants to the session.
Remind participants to sign in on the attendance sheet
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19. Briefly review the goals for the session.
Notes to Facilitator:
Briefly review the goals for the session.
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20. Hand out a copy of the case study to each participant.
Notes to Facilitator:
Hand out a copy of the case study to each participant.
Take 1 to 2 minutes for participants to read the case and complete only question 1.
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21. Under the Health Care Consent Act, health care providers must obtain informed consent from a mentally capable resident or their SDM(s) prior to initiating care or treatment of any kind in any situation (except in emergencies).
Health care providers must obtain informed consent for anything that is done for: therapeutic, preventative, diagnostic, cosmetic, or other health related purpose. This includes a course of treatment or a plan of treatment.
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22. Notes to Facilitator:
Give out Activity C and allow groups 1 -2 minutes to work through the activity.
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23. Capacity is explored further in the next two slides
Notes to Facilitator:
Take up activity C
Capacity is explored further in the next two slides
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24. understand information that is relevant to making a decision and;
Mental capacity is not a medical determination, it is not a score on the Mini Mental Test, and it is not a diagnosis.
Mental capacity for making health care decisions is a legal determination based on the ability to:
understand information that is relevant to making a decision and;
appreciate the reasonably foreseeable consequences of a decision or lack of decision
Ensuring that the resident understands and appreciates the information should be done each and every time a resident needs to make a health care decision and not just when the resident doesn’t want the treatment.
Optional Group Discussion
Ask: How do you determine understanding and appreciation?
Possible responses:
by having person repeat back what they just heard in their own words (ie repetition itself may not be a good indicator of understanding/appreciation)
by the quality of their responses to the information (appropriate, demonstrates they understand, it matches the context of the information being shared etc.)
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25. Capacity is issue specific - Capacity is related to the specific treatment proposed (i.e. a resident can be capable with respect to one decision and not another; some decisions are more complex than others and it may depend on the seriousness or complexity of the decision on hand)
Capacity is not a diagnosis - We cannot assume lack of capacity based on a diagnosis alone (i.e. a resident who is developmentally delayed, who has a psychiatric disorder or even a resident with a dementia related disorder)
Capacity can fluctuate – Capacity can fluctuate due to an underlying condition or a treatment (i.e. Some people may be lucid and aware in the morning but in late afternoon/evening understanding may be compromised)
Capacity has absolutely nothing to do with the health care provider’s opinion as to the rightness or wrongness of a decision being made. We all have the right to make decisions that others think are foolish.
When the terms of informed consent are met it does rest with the resident to make their decision without pressure or coercion. Other considerations may be brought to the table (e.g. ethics consults, second opinion etc.) to assist in the informed decision making process.
If a resident is determined to be mentally incapable then the health care provider must turn to the SDM(s).
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26. More information on Capacity Assessors (if needed)
It is the duty of the health care provider offering the treatment to determine if a resident is capable or not and whether it is necessary to turn to their SDM(s).
It is not a Capacity Assessor who is involved in assessing mental capacity under the Health Care Consent Act. The Act outlines the role of the health practitioner proposing the treatment to determine the mental capacity of the resident.
More information on Capacity Assessors (if needed)
Capacity Assessors are health professionals who are designated to do assessments of capacity. These individuals have completed specific training to become a Capacity Assessor.
Examples of circumstances for which a capacity assessor is needed is outlined within the Substitute Decisions Act
Ie. Capacity Assessors have a role in assessing a person’s mental capacity to manage property/finances, who have a Power of Attorney for Property but does not provide a method for determining whether the person is mentally capable or not
Ie. Capacity Assessors have a role in assessing a person’s mental capacity to manage property/finances for people who do not have a Power of Attorney for Property .
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27. https://www.youtube.com/watch?v=AI3McEfCNj0 Notes to Facilitator:
Show brief video on the hierarchy of Substitute Decision Makers.
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28.  Continued on next page
Notes to Facilitator:
These notes below are not meant to be read verbatim but it is a resource for you as the facilitator to be able to explain in detail.
The Ontario Health Care Consent Act, includes a hierarchy that provides every person in Ontario with an automatic SDM(s).
The person/person’s in a resident’s life that are the highest ranked in this hierarchy and that meet the requirements to act as a SDM(s) will be their SDM(s) for health care:
Guardian of the Person: This is someone that is appointed by the court to be your SDM
Attorney named in a Power of Attorney for Personal Care: This is the person/person’s you have chosen to be your SDM(s) if you prepared this document when you were mentally capable to do so.
3. Representative appointed by the Ontario Consent and Capacity Board: One of your family or friends could apply to the tribunal to be named as your “Representative,” which is a type of SDM.
Spouse or partner. Two persons are “spouses” if they are:
Married to each other; or
Living in a marriage-like relationship and,
i) have lived together for at least one year, or
ii) are the parents of a child together, or
iii) have together signed a Cohabitation Agreement under the Family Law Act. .
Note. Two people are not spouses if they are living separate and apart as a result of a breakdown of their relationship.
Two people are “partners” if they have lived together for at least one year and have a close personal relationship that is of primary importance in both people’s lives. This can include friends who have lived together for at least one year in a non-sexual relationship and have a special personal family-like relationship.
5. Child or parent or Children’s Aid Society or other person lawfully entitled to give or refuse consent to treatment in place of the incapable person. This does not include a parent who only has a right of access. If a Children’s Aid Society or other person is entitled to give or refuse consent in place of the parent, this then would not include the parent.
 Continued on next page
6. A parent who only has a right of access.
7. Brother or sister
8. Any other relative. People are relatives if they are related by blood, marriage or adoption.
9. If no person in your life meets the requirement to be a SDM(s), then the Office of the Public Guardian and Trustee is your SDM
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29. To be an SDM, a person must meet the following requirements:
Willing to act as the SDM
Mentally capable to make the needed health decisions
Available (in person, by phone or by some other means) when a decision needs to be made. This can include other means of technology that is available to the SDM and health care team that can be used in accordance with professional standards.
Not prohibited by a court order or separation agreement that prohibits access to the incapable person or giving or refusing consent on his or her behalf,
At least 16 years of age (unless he/she is the incapable person’s parent)
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30. SDM(s) only provide consent on behalf of a resident when they are mentally incapable.
The list of SDMs is a ranked list, meaning that the health care providers is required to identify the highest ranked person/people.
If there is more than one person entitled to act as the SDM at any one level in the hierarchy and they are the highest ranking in the hierarchy, they must make decisions together (jointly) or they must decide amongst themselves which of them will act as the resident’s SDM.
For example 3 adult children must act together and agree on any decisions for their incapable parent’s health care. If they all agree that only one of them should make decisions for their parent, then that one child may make decisions for the parent alone, without talking to the other two, and the health care professionals must take direction from that one child. The health care professionals cannot pick which one of the three should make decisions for the resident. The three children must decide amongst themselves whether they all act together or which one of them will act.
If there is a conflict among people who are equally entitled to act as the SDM, and they all want to act, and they cannot agree on the decisions about treatment for you, the Public Guardian and Trustee is required to act as the SDM instead of any of them. The Public Guardian and Trustee does not choose between the disagreeing decision makers but “shall make the decision in their stead.”
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31. It is very important to recognize that a Power of Attorney for Personal Care (POAPC) is part of the hierarchy and is only one type of SDM.
The POAPC is a document in Ontario that a mentally capable person can prepare to name a person(s) to be their SDM(s) for future health and other personal care decisions.
This document is used to name someone referred to as the “attorney” who would make future health and other personal decisions (decisions about nutrition, shelter, safety, clothing and hygiene) on behalf of that resident if they were to become mentally incapable. The word “attorney” does not mean a lawyer but is anyone named in that document.
It is recommended that forms ask about SDM(s) rather than POAPC to dispel the misconception that you have to do this to have an SDM.
Note. LTC homes cannot require residents to prepare a POAPC as condition of admission.
Note: The Power of Attorney for Personal Care is NOT the same as the Power of Attorney for Property. The Power of Attorney for Property is the document where you name a person(s) to make decisions about your money and property. The attorney for property cannot make decisions for you about your health and personal care.
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32. Take up the activity and discuss the ranking rationale of the group.
Notes to Facilitator:
Take 1 to 2 minutes to revisit the case. Inform the group that Mrs. Brown has been found to be mentally incapable and allow the group to complete question 2.
Take up the activity and discuss the ranking rationale of the group.
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33. In order to make the decision, the OPGT requires:
If there is no SDM(s) who meets the requirements to make a decision, the Office of the Public Guardian and Trustee (OPGT) shall make the decision.
In order to make the decision, the OPGT requires:
Verbal confirmation that the resident has been found mentally incapable
Information about the efforts to locate a higher ranked SDM(s)
Information about the resident
Information about the proposed treatment
The OPGT will verbally advise the health care provider or a member of their team of the decision.
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34. If SDM(s) is not available – then next raking SDM(s) steps in
This slide reviews some of the common questions/scenarios that arise when thinking about the hierarchy and requirements of SDM(s)
So what if:
If you, as the health practitioner, are of the opinion that the highest ranking SDM(s) is not capable to make treatment decision – then next SDM(s) on the list steps in
If SDM(s) is not available – then next raking SDM(s) steps in
If SDM(s) not willing to act – then next ranking SDM(s) steps in
If SDM(s) claims to be attorney – SDM(s) should be able to produce POAPC to confirm this
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35. Additional Notes (if needed)
So what if:
There are multiple equal ranking SDM(s) – all must act or they choose amongst themselves how many act –but if can’t agree then must turn to the OPGT
SDM(s) not acting based on wishes or best interest – it would be recommended that the health care team engage further with the SDM(s) to understand the situation and clarify any misunderstanding/misinformation. A discussion about resident’s previous wishes and if they have been considered. It is an obligation of health practitioners to educate SDM(s) about their obligations in the role. A completion of a Form G through the Consent and Capacity Board should be the last resort.
Additional Notes (if needed)
It is important to understand that it the SDM(s) who interprets a resident’s wishes and determines if the wishes are applicable (ie. It may appear that an SDM is not following a wish when in fact they are). Also if a wish is impossible to honour than it does not need to be followed).
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36. Anticipated responses: -Would have to confirm she was willing
Notes to Facilitator:
Opportunity to revisit the case and explore whether the group has any concerns with Karen meeting the requirements to be an SDM.
ASK: Based on the requirements to be an SDM, do you have any concerns with Karen meeting these requirements?
Anticipated responses:
-Would have to confirm she was willing
-Would have to confirm if she was capable
-Would have to confirm there is no court order prohibited Karen from acting
-We know Karen meets the age requirements
-Would have to confirm that she is available – Karen lives in Florida; is she accessible via phone, etc in a timely manner. Availability depends on the needs of the decision (e.g., urgent decision). Given the distance, a discussion about an alternate SDM(s) may be warranted.
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37. Opportunity to close the case study.
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38. 38 Welcome participants to the session.
Remind participants to sign in on the attendance sheet 38
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39. Briefly review the goals for the session.39
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40. Under the Health Care Consent Act, health care providers must obtain informed consent from a mentally capable person or their SDM(s) prior to initiating care or treatment of any kind in any situation (except in emergencies).
Health care providers only turn to the SDM(s) for consent with the resident is mentally incapable. In doing so, they have to know who the SDM(s) is/are, and the role and responsibilities of SDM(s) in making decisions.
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41. Whether a health care provider is working with a mentally capable patient or an SDM(s), the requirements for consent to be informed and valid are the same:
Consent must relate to a specific treatment, be informed and voluntary, and must not be obtained through misrepresentation or fraud.
Informed consent requires that information is provided on the nature, expected benefits, material risks and material side effects of the treatment as well as on alternative courses of action and the likely consequences of not having the treatment.
Informed consent also requires that the person receives responses to his or her requests for additional information about those matters. 41
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42.  In making decisions on behalf of a person, SDM(s) make decisions the way the person would have made them.
To do so, SDM(s) must first consider Prior Capable Wishes:
whether there are prior capable wishes
whether the wishes were expressed when the person was still capable (and were expressed voluntarily);
whether the wishes are the last known capable wishes whether the wishes are POSSIBLE to follow (Occasionally, wishes cannot be honored e.g. I never want to go to a nursing home but now the incapable person requires 24/7 care so the wish cannot be honored)
what the patient meant in that wish;
whether the wishes are applicable to the particular decision at hand;
It is important to note that recently expressed wishes trump any wishes that came earlier.
This includes written and oral wishes (ie. Later oral wishes can trump earlier written wishes)
Just because wishes are written down do not take precedent over other wishes
The SDM(s), and not the health care provider, interpret the wishes when decisions for treatment are being sought. 42
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43. If no applicable wishes were expressed while a person was mentally capable, the SDM(s) must consider making decisions in the person’s ‘best interest’.
In doing so, SDM(s) must consider:
values and beliefs
other wishes (i.e. expressed while incapable) Note: the SDM is not bound by wishes expressed after incapacity
whether treatment likely to: improve condition, prevent condition from deteriorating, reduce the extent or rate of deterioration
whether condition likely to improve or remain the same or deteriorate without the treatment
if benefit outweighs risks
whether less restrictive or less intrusive treatment as beneficial as treatment proposed 43
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44. It Is the legal obligation of health care providers to educate SDM(s) about their roles and responsibilities in health care decision making
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45. There are options for health care providers if they do not believe SDM(s) are complying with their role & responsibilities (i.e. prior capable wishes or acting in best interest).
The Consent & Capacity Board’s Form G serves this purpose. Health care providers can apply to the CCB to have them determine if the SDM(s) is complying with their role and responsibilities.
Before applying for a Form G health care providers should:
Have open discussions with SDM(s) about the concerns (ie. Via care conferences, second opinions, seek consultation with ethics, etc)
Ensure SDM(s) is made aware of his/her obligations
Document all of this information/conversations
This process should not be at an expense to the resident and/or SDM(s) as it is all to facilitate communication between the Health care Providers and the health decision maker (ie resident or SDM) 45
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46. 46 Notes to Facilitator Handout the resource title Communication Tips
You can use this to support the next slides
One role health care providers can have is by encouraging ACP conversations between a mentally capable resident and their SDM(s)
If the resident is capable, the SDM(s) continue to have opportunity to have ongoing conversations and ensure their understanding of the resident’s values, wishes and beliefs that can help guide future decision making.
You can educate SDM(s) about what it means to act as an SDM and what this role entails. This will give SDM(s) an opportunity to identify the information they may be missing and have conversations with their loved one to prepare.
Take the opportunity to have a group discussion about communication phrases that the participants could use in their practice in this situation:
ASK: What phrases have/could they use to encourage ACP conversations with:
1) A mentally capable resident
2) Their Substitute Decision Maker(s) 46
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47. Notes to Facilitator
Take the opportunity to review the first section on the Communication Tips handout titled “For capable residents & the future SDM(s)”
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48. The second role health care providers can have is by supporting SDMs if they are making health care decisions on behalf of a mentally incapable resident
If the resident is not mentally capable to make their own health care decisions, health care providers have a responsibility to ensure the SDM(s) understand their role, their rights and their responsibilities in making health care decisions on behalf of someone else.
It is important to recognize that not all SDM(s) are aware of their roles & responsibilities and may have to be reminded or educated about their responsibility to consider previous expressed capable wishes and best interests.
Notes to Facilitator
Take the opportunity to have a group discussion about communication phrases for this situation
ASK: What phrases have/could they use in a situation where a Substitute Decision Maker is making decisions on behalf of a mentally incapable resident. And have a group discussion. 48
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49. Notes to Facilitator
Take the opportunity to review the second section on the Communication Tips handout titled “For SDM(s) active in their role”
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50. Notes to Facilitator:
This is your opportunity to summarize the three modules and review the competencies session participants should now have as a result of your time together 50
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51. 51 Notes to Facilitator: Distribute session evaluations
Give participants who attended three modules Certificates of Completion 51
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52. 52
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