In Ontario, at any age, you are presumed to have the capacity to make decisions with respect to your healthcare treatment. However, this right can be taken away from you by the health practitioner if they find you “incapable” of making the decision.
How can I be found incapable?
A health practitioner will look at a number of things before they can find you incapable. This includes deciding whether you are able to understand:
- the nature of the problem or issue,
- the treatment that is being suggested, and
- what might happen to you if you give or refuse consent.
If you are found incapable, the health practitioner cannot just go ahead and make treatment decisions for you. Decisions about treatment will be made by your substitute decision-maker. That person must be at least 16 years old (unless they are the parents of the patient).
Who will be my substitute decision-maker?
If you are under 16, your substitute decision-maker will be your parent (or another person who is standing in the place of your parent).
If you are 16 or older, it will be one of the following (if there is no one who fits the description of #1, it will be #2, etc):
- your court-appointed guardian of the person
- your “attorney for personal care”
- a person appointed by the Consent and Capacity Board
- your spouse or common-law partner
- your parent
- Children’s Aid Society or another person standing in the place of your parent
- your parent who has access rights only
- your brother or sister (who must be 16 or older)
- any other relative
- the Public Guardian and Trustee
What is an Attorney for Personal Care?
Your Attorney for Personal Care is someone you choose to make health-related decisions for you if you are later found to be incapable. You must be 16 or older and capable to make this choice.
You must do this in writing and you can choose more than one person. You should choose someone that you trust. You can also be specific about your treatment wishes; this is especially important if you want or do not want certain treatments.
Where can I get more information on appointing an Attorney for Personal Care?
You can get more information and a Power of Attorney Kit (with forms to complete) from the Ministry of the Attorney General.
You should talk to a lawyer for specific advice.
How will my substitute decision-maker make decisions?
When your substitute decision-maker is making decisions about your treatment(s), they must consider any wishes that you made after you turned 16 and while you were capable. Otherwise, they must act in your best interests. The law sets out how to determine what’s in your best interests. For example, they must consider your values and beliefs.
You should talk to the people who may end up as your substitute decision-maker about your treatment beliefs and wishes in case you are later found to be incapable.
What can I do if I feel that I am capable?
If someone decides that you are incapable, you can appeal the decision to the Consent and Capacity Board.
Talk to a lawyer to find out more information about this process.