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CED: An Overview of the Law — Mental Incapacity

On October 18, the Supreme Court of Canada released Cuthbertson v. Rasouli, 2013 CarswellOnt 14113, a decision affirming that a physician must obtain the consent of a patient’s substitute decision maker in order to withdraw life support. If the substitute decision maker refuses to give consent, the physician may challenge the refusal before the Consent and Capacity Board. The following excerpt contains a detailed overview of the law concerning the treatment of patients who are mentally incapable of providing consent.

Mental Incapacity (Ontario)

By: Richard D. Schneider



IV.5: Treatment of Mentally Incapable Persons



Click here For access to this CED title and its related Canadian Abridgment links on Westlaw Canada

 

IV.5:  Treatment of Patients



See Canadian Abridgment: HLT.VI.4.a Health law  | Consent and capacity | Capacity | To consent to treatment;  Canadian Abridgment: HLT.VI.5.a Health law  | Consent and capacity | Capacity| Community treatment order | Plan of treatment  

 

A person is capable with respect to a treatment, admission to a care facility or a personal assistance service if the person is able to understand the information that is relevant to making a decision about the treatment, admission or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of a decision.1 A person is entitled to rely on the presumption of capacity with respect to another person unless he or she has reasonable grounds to believe that the other person is incapable with respect to treatment, the admission or the personal assistance service.2

 

At a capacity hearing, the onus is on the attending physician to refute, on a balance of probabilities, the presumption3 that the person is capable of deciding whether to accept or reject medical treatment. The presumption of capacity can be displaced only with evidence that the patient lacks the requisite elements of capacity provided by the Health Care Consent Act, 1996. Capacity involves two criteria: first, a person must be able to understand information relevant to making a decision on treatment; second, a person must be able to appreciate the reasonably foreseeable consequences of making, or not making, that decision. A finding of incapacity is justified only if the reasons of the patient for failing to appreciate those consequences demonstrate that his or her mental disorder prevents him or her from having the ability to appreciate the foreseeable consequences of the decision.4

 

The legislative mandate of the Consent and Capacity Board is to adjudicate solely upon a patient's capacity. The board's conception of a patient's best interests is irrelevant to that determination. The only issue before the board in this case was whether the patient was capable of making a decision on the suggested medical treatment; the wisdom of his decision had no bearing on this determination. The determination of a patient's capacity is a question of mixed fact and law, because it requires that the board apply the evidence before it to the statutory test for capacity. Based on the pragmatic and functional approach, the appropriate standard of review for the board's decision was reasonableness.5

 

A person may be incapable with respect to some treatments and capable with respect to others and a person may be incapable with respect to treatment at one time and capable at another.6

 

In the context of the Mental Health Act,7 it has been held that a mentally capable involuntary patient has a constitutionally protected right to refuse unwanted psychiatric treatment.8

 

A health practitioner who proposes a treatment for a person may not administer the treatment, and must take reasonable steps to ensure that it is not administered, unless, (a) he or she is of the opinion that the person is capable with respect to the treatment, and the person has given consent; or (b) he or she is of the opinion that the person is incapable with respect to the treatment, and the person's substitute decision-maker9 has given consent on the person's behalf.10

 

The elements required for consent to treatment are: (1) the consent must relate to the treatment; (2) the consent must be informed; (3) the consent must be given voluntarily; and (4) the consent must not be obtained through misrepresentation or fraud.11 Consent to treatment is informed if prior to giving it the person received the information about the matters as a reasonable person in the same circumstances would require in order to make the decision about the treatment and the person received responses to requests for additional information about those matters.12

 

Consent to treatment may be express or implied.13

 

A consent that has been given by or on behalf of the person for whom the treatment was proposed may be withdrawn at any time by the person, if the person is capable with respect to the treatment at the time of the withdrawal or by the person's substitute decision-maker, if the person is incapable with respect to the treatment at the time of the withdrawal.14

 

If, after consent to a treatment is given or refused on a person's behalf, the person becomes capable with respect to treatment in the opinion of the health practitioner, the person's own decision to give or refuse consent to the treatment governs.15

 

If a plan of treatment is to be proposed for a person, one health practitioner may, on behalf of all health practitioners involved in the plan of treatment, (a) propose the plan of treatment; (b) determine the person's capacity with respect to the treatments referred to in the plan of treatment; and (c) obtain consent or refusal of consent from the person, concerning the treatments with respect to which the person is found capable, and from the person's decision-maker, concerning the treatments with respect to which the person is found to be incapable.16

 

If a person is incapable with respect to treatment, consent may be given or refused on his or her behalf by: (1) the incapable person's guardian of the person, if the guardian has authority to give or refuse consent to treatment; (2) the incapable person's attorney for personal care, if the power of attorney confers authority to give or refuse consent to the treatment; (3) the incapable person's representative appointed by the Board under s. 33, if the representative has authority to give or refuse consent to treatment; (4) the incapable person's spouse or partner; (5) a child or parent of the incapable person or a children's aid society or other person who is lawfully entitled to give or refuse consent to the treatment in the place of the parent; (6) a parent of the incapable person who has only right of access; (7) a brother or sister of the incapable person or (8) any other relative of the incapable person.17

 

A person who gives or refuses consent to a treatment on an incapable person's behalf must do so in accordance with the following principles: (1) if the person knows of a wish applicable to the circumstances that the incapable person expressed while capable and after attaining 16 years of age, the person must give or refuse consent to treatment in accordance with the wish; and (2) if the person does not know of a wish applicable to the circumstances that the incapable person expressed or if it is impossible to comply with the wish the person shall act in the incapable person's best interests.18

 

In deciding what the incapable person's best interests are, the person who gives or refuses consent on his or her behalf is to take into consideration the values and beliefs that the person knows the incapable person held when capable and believes he or she would still act on if capable, any wishes expressed by the incapable person with respect to the treatment and the following factors: (1) whether the treatment is likely to (i) improve the incapable person's condition or well-being, (ii) prevent the incapable person's condition or well-being from deteriorating, or (iii) reduce the extent to which or the rate at which the incapable person's condition or well-being is likely to deteriorate; (2) whether the incapable person's condition or well-being is likely to improve, remain the same or deteriorate without treatment; (3) whether the benefit the incapable person is expected to obtain from the treatment outweighs the risk of harm to him or her; and (4) whether a less restrictive or less intrusive treatment would be beneficial as the treatment that is proposed.19

 

Where a health practitioner who has proposed a treatment for an incapable person is of the opinion that the substitute decision-maker did not comply with the principles for giving or refusing consent to treatment, the health practitioner may apply to the Consent and Capacity Board for a determination of that issue.20 The Board may substitute its opinion for that of the substitute decision-maker21 or issue directions22 and set a time-limit for compliance23 by the substitute decision-maker. Failing compliance, the person will be deemed not to meet the requirements for a guardian or attorney for personal care,24 and any subsequent substitute decision-maker will be required to comply,25 or to apply for further directions.26

 

 A party to a proceeding before the Consent and Capacity Board may appeal the board's decision to the Superior Court of Justice on a question of law or fact or both.27

 

A treatment may be administered without consent to a person who is incapable with respect to treatment, if in the health practitioner's opinion, there is an emergency and the delay required to obtain consent or refusal on the person's behalf will prolong the suffering that the person is apparently experiencing or will put the person at risk of sustaining serious bodily harm.28

 

 A treatment may also be administered without consent to a person who is capable with respect to the treatment, if in the health practitioner's opinion, there is an emergency, the communication required for the person to give or refuse consent to the treatment cannot take place because of a language barrier or because the person has a disability that prevents communication, steps have been taken that are reasonable in the circumstances to find a practical means of enabling the communication, but no such means has been found and the delay required to enable communication will prolong suffering that the person is apparently experiencing or will put person at risk of sustaining serious bodily harm.29

 

Psychosurgery30 shall not be administered to an involuntary patient, to a person who is incapable of giving or refusing consent to psychosurgery on his or her own behalf for the purposes of the Health Care Consent Act, or to a person who is remanded or detained in a psychiatric facility pursuant to the Criminal Code.31

 

A guardian of the person may not use electric shock as aversive conditioning and shall not give consent on the person's behalf to the use of electric shock as aversive conditioning, unless the consent is given to a treatment in accordance with the Health Care Consent Act, 1996.32

 

The Mental Health Act33 and its regulations place a duty on psychiatric facilities to provide patients suffering from mental disorders with services including observation, care and treatment. This necessarily implies a duty to take reasonable steps to provide a safe environment for patients who are undergoing observation, care and treatment in a psychiatric facility.34

 

Click here to view footnotes.

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