1. Topic 3: The Role & Responsibilities of the Substitute Decision Maker(s)
Welcome participants to the session.
Remind participants to sign in on the attendance sheet 1

2. Objectives
To review the role & responsibilities of Substitute Decision Maker(s) (SDMs)
Troubleshooting options for Health Care Providers
Discussion of the Health care providers role in:
Promoting “ACP” conversations
Obtaining Health Care Consent
Briefly review the goals for the session. 2

3. Setting the Stage
In Ontario, when a health care decision is needed, Health Care Providers must obtain informed consent from the:
Resident OR
Their SDM(s) if they are found to mentally incapable
Health Care Providers have to determine who they need to speak to & how the SDM(s) are supposed to make decisions
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. 3

4. SDM(s) & Health Care Consent:
SDM(s) give or refuse consent on behalf of a mentally incapable person. In this role, SDM(s) are entitled to receive the same information from health care providers in order to provide informed consent
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. 4

5. How does an SDM(s) make decisions?
SDM is the “interpreter” of the resident's wishes, values and beliefs and must determine:
whether the wishes of the resident were expressed when the resident was still capable (and were expressed voluntarily);
whether the wishes are the last known capable wishes;
what the resident meant in that wish;
whether the wishes are applicable to the particular decision at hand
 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. 5

6. What if no applicable/capable ‘wishes’?
SDM(s) must consider how the resident’s values, beliefs, and incapable wishes (inapplicable wishes) would apply to the resident/patient’s best interest
SDM(s) have to consider:
a) values and beliefs
b) other wishes (i.e. expressed while incapable)
c) whether treatment likely to: improve condition, prevent condition from deteriorating, reduce the extent or rate of deterioration
d) whether condition likely to improve or remain the same or deteriorate without the treatment
e) if benefit outweighs risks
f) whether less restrictive or less intrusive treatment as beneficial as treatment proposed
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 6

7. Role of Health Care Providers
It is the legal obligation of the health practitioner to inform the SDM(s) that when making decision on behalf of a mentally incapable person, they must consider:
Patient’s wishes, values, beliefs expressed when capable or
The best interest of the patient
Advocacy Centre for the Elderly 2016
It Is the legal obligation of health care providers to educate SDM(s) about their roles and responsibilities in health care decision making 7

8. What if the SMD(s) isn’t following their role & responsibilities?
Form G
Purpose: CCB to determine compliance with principles of substitute decision making
Applicant: Health Practitioner
Outcome: If the CCB determines if the SDM did not comply with s. 21, it may give the SDM(s) directions and will specify the time within which the directions must be complied with .
Resources: Information sheet ; Application form
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) 8

9. What is your role in: Promoting ACP Conversations
Health Care Providers can:
Help the mentally capable resident to understand the role of SDM(s)
Provide education on how health care decisions are made in Ontario and why/how ACP conversations can be helpful
Share examples of the types of conversations they can have and their role in helping prepare SDM(s) for the role
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) 9

10. Handout: Communication Tips
Notes to Facilitator
Take the opportunity to review the first section on the Communication Tips handout titled “For capable residents & the future SDM(s)”

11. What is your role in: Health Care Decision Making
Health Care Providers must:
Decide if you are working with the resident or the SDM(s)
Provide all of the information necessary to the health decision maker to make an informed decision
If working with an SDM, explain their role and obligations & determine if they are acting in accordance with these
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. 11

12. Handout: Communication Tips
Notes to Facilitator
Take the opportunity to review the second section on the Communication Tips handout titled “For SDM(s) active in their role”

13. As a result of these modules:
You should have a clearer understanding of:  ACP in Ontario  The relationship between ACP and Health Care Consent in Ontario  Who is the SDM(s) & their roles/responsibilities  How to educate capable residents & their SDMs about the role of the SDM(s) in making health care decisions  The local resources available to support these conversations
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 13

14. Questions & Evaluations For more information visit
Notes to Facilitator:
Distribute session evaluations
Give participants who attended three modules Certificates of Completion
For more information visit 14

15. Key References
Conversations Worth Having, Waterloo Wellington’s Advance Care Planning Education Program –
Ontario Health Care Consent Act,
Ontario Substitute Decisions Act,
ACE Advocacy Centre for the Elderly -
Hospice Palliative Care Ontario -
Speak Up Ontario –
Dr. Nadia Incardona and Dr. Jeff Myers. ACP Conversation Guide - Clinician Primer 2016
Consent and Capacity Board -
Public Guardian and Trustee Office - 15