This webinar is brought to you by
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2010, Community Law School
(Sarnia-Lambton) Inc.
About our presenter…
Judith Wahl has been the Executive Director and Senior Lawyer at the
Advocacy Centre for the Elderly (ACE) since 1984. ACE is a community
legal service for low income seniors that focuses on legal issues that have
a greater impact on the older population.
Judith has organized and taught numerous public legal education
programmes on legal issues that arise in day to day work with seniors,
including Advance Care Planning - Physicians’ Training Ontario College of
Family Physicians and Alzheimer Society of Ontario; Gerontology
Programme at McMaster University, Faculty of Social Sciences; the
Diversity Training Course at C.O. Bick Police College; as well as
Continuing Legal Education Programmes for the Law Society of Upper
Canada, Ontario Bar Association, the former Canadian Bar Association –
Ontario, and the Canadian Bar Association National.
Health Care Consent and
Advance Care Planning
- Getting it Right
Part I – Health Care Consent Basics
Part II- Advance Care Planning
Judith Wahl, B.A., LL.B.
Barrister and Solicitor
Advocacy Centre for the Elderly
wahlj@lao.on.ca
Advoccacy Centre for the Elderly
2010
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Advocacy Centre for the
Elderly
• Legal advice and representation
• Public legal education programs
• NEW website address - www.acelaw.ca
• Mailing address: 2 Carlton Street, Suite 701
Toronto, ON M5B 1J3
416-598-2656
To receive ACE newsletter by Email please, send
Email to gillardt@lao.on.ca with
Subject line – “ACE NEWSLETTER registration”
Advoccacy Centre for the Elderly 2010
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Today’s Webinar Part 2 of 2
Health Care Consent and Advance Care Planning
- Getting it Right
Part 2 – Advance Care Planning
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The relationship between Health Care Consent and Advance
Care Planning
What is advance care planning?
Who can advance care plan?
Options for advance care planning
Who do advance care plans ”speak” to?
Difference between advance care plans and health care consent
Applications to the Consent and Capacity Board about health
care decisions
Two Scenarios on consent and advance care planning
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Webinar Part I of 2
Health Care Consent and Advance Care Planning
- Getting it Right
Part I – Health Care Consent Basics
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Introduction – Health Care Consent and Advance Care Planning
Basic principles of health decision making
What are health decisions?
What is consent and informed consent?
Who Gives or refuses consent?
What is capacity to consent?
Who assesses capacity to consent?
SDMs for health decision –Who is the right SDM?
How does a SDM make a decision for an incapable patient?
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Questions during Webinar
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Please write your questions in the chat box
during the presentation
We will also break for questions twice during
the presentation
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after the explanation of what is advance care
planning
after the explanation of the applications that can
be made to the Consent and Capacity Board
We will also take questions at the end
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Legislation
Health Care Consent Act (HCCA)
 Substitute Decisions Act (SDA)
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See “Laws” on the Ontario Government website at
www.gov.on.ca
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Treatment Decision Making
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Health practitioners must get an informed
consent before providing treatment
That consent must come from the patient, if
mentally capable, or the patient’s SDM if the
patient is not capable
Only in an emergency may a health
practitioner treat without consent
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What is Valid Consent?
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HCCA, s. 11
1.
2.
3.
4
Must relate to the treatment
Must be informed
Must be given voluntarily
Must not have been obtained through
misrepresentation or fraud
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What is Informed Consent?
Patient must receive information on the:
• Nature of the treatment
• Expected benefits of the treatment
• Material risks of the treatment
• Material side effects
• Alternative course of action
• Likely consequences of not having the treatment
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Relationship between Consent
and Advance Care Planning (ACP)
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The patient, when capable, may express wishes
about future treatment that may be delivered to him
or her when he or she is not mentally capable
These wishes may be expressed orally, in writing, or
communicated by any other means
These wishes
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Are used by the SDM when making treatment decisions for
the patient
Are used by the health practitioner when making treatment
decisions for the patient in an emergency
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Wishes are not consents
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The wishes are not consents as they are made
without the full information necessary to give or
refuse an informed consent
The SDM must interpret the wish to determine if the
wish is applicable to the particular treatment
decision he or she must make for the patient
Same rule for health practitioners' if they are treating
the patient in an emergency
The SDM may apply to the Consent and Capacity
Board for guidance as to how to interpret the
wishes, or to get authority to not follow the wishes
under certain circumstances
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Treatment in the future is NOT
necessarily ACP
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A person can give an informed consent to a
treatment that takes place or is withheld in
the future if the decision for that treatment is
relevant considering the persons PRESENT
HEALTH CONDITION
This is not ACP but consent
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Decisions can be for present
care and care in the future
• Plan of treatment ….(may) deal with one or
more of the health problems that the person
is likely to have in the future given the
person’s current health condition, and
• ……may, in addition, provide for withholding
or withdrawal of treatment in light of
person’s current health condition
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Advance Care Planning
• Usually involves the selection of a person or
persons to act as SDM if the patient becomes
mentally incapable for treatment decision making
• Also may describe care and treatment that a
person wants in the future when he or she is no
longer mentally capable for decision-making about
treatment
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Advance Care Planning
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May focus on end of life care or also include
wishes about care and treatment over the
course of life
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May provide information on patients values
and beliefs to guide the SDM’s
decision-making when the patient is
mentally incapable
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Advance Care Planning
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•
Choice of a person or persons as attorneys in a
Power of attorney for personal care (POAPC) must
be in writing in a document (a POAPC document)
If a person has not prepared a POAPC, they still
have a SDM for health care. The SDM is the person
or persons highest ranking in the SDM hierarchy list
in the HCCA. Everyone always has an SDM for
health care because of the legislation.
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Advance Care Planning
• Wishes about future health care do not need to be in
writing
• Wishes may be expressed at any time that a
patient is mentally capable in respect to decisions
about the subject of the wish
• Later wishes, however communicated, expressed
while capable prevail over earlier wishes
• This is true even if the previous wishes were in
writing and the later wishes are oral
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Problems of
Advance Care Plans
• Wishes change, particularly as health condition changes
• Wishes may be communicated by the patient to their future SDM that
are different than the wishes earlier expressed by the patient to the
health team
• Not possible to anticipate given illness
• Vague language leading to misinterpretation
• Treatments change as science advances so wishes would likely
have been different if could anticipate advances
Advoccacy Centre for the Elderly 2010
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Hospice
Advoccacy
Palliative
Centre
Care
for the
Conference
Elderly 2010
2009
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Guide to Advance Care
Planning
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Should have been titled Guide to Health Care
Consent and Advance Care Planning
Need to get consent or refusal of consent before
treatment
Advance care planning may be part of the process
for patients as it allows them to consider whether
they want the SDM highest in the SDM Hierarchy in
the HCCA to make treatment decisions for them for
them if they are not mentally capable for treatment
in the future
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Questions?
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Any questions about the relationship between
health consent and advance care planning
and the explanation of what is advance care
planning?
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Rules for ACP
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Only capable people, age 16 and older, can ACP.
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Capable patients can express “wishes,” which may or may
not be “informed.”
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When a person has an advance care plan about a
potential future health condition:
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consent has not been acquired.
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if the patient is incapable, consent must still be acquired
from a substitute decision-maker(s) (SDM(s)) (except in
emergencies)
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Options for Advance Care
Planning
• Wishes expressed orally
• Written documents
(a) Power of attorney for personal care
(b) Written advance directive/living will
• Wishes expressed by other means (eg.
communication board)
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Wishes Expressed Orally
• Some people may not want to write down wishes but will
want to express wishes orally
• Oral wishes about treatment options are as valid as
written wishes
• You cannot appoint a person as an SDM orally
• Written wishes may be changed by later oral wishes
• Oral wishes may be recorded in chart or plan of care
• Patients CANNOT be required to complete any
hospital or long term care home advance directive
forms if they do not want to put their wishes in writing
or want to use their OWN method of ACP or do not
want to express any wishes at all
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Written Wishes
• Can be in form of power of attorney for personal
care (POAPC) or advance directive/living will
• POAPC is format in the Ontario legislation
• POAPC names SDM (attorney) and may also
include wishes about care , must be in writing,
made when mentally capable, must be signed by
person in presence of two witnesses
Someone can be appointed as SDM ONLY in a
valid POAPC
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Written Wishes
• Advance directive/living will - only mentioned in the
legislation as “wishes”
• Not a specific format - usually just a statement of
wishes about health care and no appointment of
SDM
• Only POAPC gives authority to name SDM
• Living will documents that purport to name someone
as SDM cannot be used for this purpose
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Written Directives
• Person CANNOT be required to sign facility
advance directive as condition of admission
or to receive treatment or NOT receive treatment
(ie. no CPR)
• Only patient when capable can sign either
POAPC or advance directive/living will
• SDM CANNOT advance care plan
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DNR Confirmation Form
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This is a form that is signed by a regulated
health professional as a communication to
ambulance and fire personnel as to the
patient’s directions about resuscitation
Without this document ambulance and fire
personnel are required to resuscitate
Despite this form, if the patient or SDM tell
the ambulance or fire personnel to
resuscitate, they will resuscitate
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DNR Confirmation Form
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The DNR Confirmation Form is NOT an
Advance Directive but is a Confirmation of a
Consent to DNR/ Confirmation of Refusal of
Consent to resuscitation treatment
It is a confirmation of the consent that
resulted from the discussion between the
health provider and the Patient, if capable, or
the patient’s SDM, if the patient is not
capable
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Who does the ACP speak to?
• Wishes/advance care plans are directions to
future SDMs – NOT to health practitioners
except in an emergency
• Wishes, whether written, oral or expressed in any
other manner, are interpreted by SDMs as health
providers always need to get consent from capable
patients or SDM if patient is incapable
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SDM’s Role – CONSENT, not ACP
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SDMs cannot advance care plan
However, if the patient’s present plan of treatment
deals with one or more of the health problems that the
person is likely to have in the future given the
person’s current health condition, and
Provides for the administration to the person of
various treatments or courses of treatment and may,
in addition, provide for the withholding or withdrawal
of treatment in light of the person’s current health
condition, then the SDM can CONSENT or REFUSE
consent to these “future” treatments
This is NOT advance care planning
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How SDMs Make Substitute
Decisions
It is the responsibility of the SDM to make
treatment decisions for an incapable person by:
a) following any wishes of the patient expressed
when capable that are relevant to the decision;
and
b) if no wishes are known or are relevant to the
particular decision, to act in the best interests of
the patient
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Best Interests Definition
SDM to consider:
a) values and beliefs
b) other wishes (i.e. expressed while incapable)
c) whether treatment likely to:
i)
improve condition
ii)
prevent condition from deteriorating
iii)
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
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What if the SDM seems not to be making health
decisions in accordance with Patient’s Express
wishes?
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SDM is the “interpreter” of the wishes and must determine
 whether the wishes of the patient were expressed when the
patient was still capable (and were expressed voluntarily);
 whether the wishes are the last known capable wishes or
whether the patient changed his/ her mind when still capable,
 what the patient meant in that wish;
 and whether the wishes are applicable to the particular decision
at hand
Health practitioners need to TALK with the SDM to discuss his/
her understanding of the wishes expressed and whether the
wishes ( if the last capable wishes), are applicable to the decision
at hand
The SDM may go to the Consent and Capacity Board if the
wishes are not clear, if the SDM wants to depart from following
the wish
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Health Practitioner and
Conflict with SDMs
If health practitioner in doubt that SDM is fulfilling
his/her role:
• Check if SDM understands the patients condition
• Check if SDM appreciates implications of the illness,
treatments, risks, benefits for the patient
• Health practitioner should get a second opinion about
their own interpretation of illness and treatment
options for the patient
• Make an application to Consent and Capacity Board
to direct SDM to follow advance wish(es) of patient or
act in best interests or otherwise be removed
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Health Practitioner and
Conflict with SDMs
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It is NOT appropriate to just refuse to take
consent/refusal of consent from the lawful
SDM – the legislation provides the process to
seek an answer
It is not appropriate to just look at what the
advance care plan, if any, states – consent
comes from a person not a piece of paper
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Applications to Consent and
Capacity Board
1. Application by patient to challenge finding of
incapacity to make treatment decisions
2. Application by SDM or health practitioner for
directions if patient had expressed wish and
wish not clear etc.
3. Application by SDM or health practitioner to
depart from wishes
4. Application by health practitioner to determine
if SDM in compliance with HCCA, s. 21
(wishes/best interests)
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Questions?
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Any questions about
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How to prepare an ACP?
Role of the SDM in respect to the wishes?
What can be done if the SDM is not following
wishes?
About hearings on these issues before the
Consent and Capacity Board?
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Scenario 1 - What Does the
Nurse do?
A nurse has been caring for a terminally ill client whose decision,
after being given information about his present health condition,
treatment options, risks, benefits, is for no resuscitation. The
family has been involved in the discussions about resuscitation
and has supported the client’s choice. The nurse is at the
bedside with the family as the client’s death is imminent. When
the client stops breathing, the family members shout, ‘Do
something!’
Adapted from Practice Standard on Resuscitation,
College of Nurses of Ontario, 1999
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Scenario 1
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Does the nurse have CONSENT?
Consent to what?
Does she have a consent to not treat?
Did the patient do an ACP or give consent to
no CPR?
Does the SDM have a role?
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CONSENT, not ACP
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Capable patient
Informed consent to no CPR
Not an ACP as related to present health
condition and had full information
Patient is decision maker and not SDM
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Logic?
ACP is
about
planning in
“advance”
for future
situations
Discussions
about CPR
occur in
“advance”
Advance
Care Plan
Time
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Simplistically
Discussions
about CPR
happened
and consent
was
acquired
A current
Plan of
Treatment
was revised
Plan of
Treatment
Time
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Scenario 2 – Is this a Consent? Is this
an ACP? How is it Used? Should it be
Used? Why is it Used?
Mrs Smith is a new resident in a long term care home. Mrs Smith and her
daughter Vera were given a number of documents and were asked to sign
them. One of these is a Level of care form.
LEVEL ONE: Comfort care; no treatment of non-reversible and reversible
conditions; no CPR
LEVEL TWO: Comfort care; treatment of reversible conditions; no
treatment of non-reversible conditions; no CPR
LEVEL THREE: Comfort care; treatment of non-reversible and reversible
conditions; no CPR
LEVEL FOUR: Comfort care; treatment of non-reversible and reversible
conditions; full CPR; Transfer to Hospital
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Scenario 2
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Is this a consent?
Is this an advance care plan?
How is it used?
Should it be used?
Why is it used?
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If Mrs Smith is Capable with
Respect to Treatment
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Capable patient
No info on present health condition
No info on specific treatments, risks, benefits, etc.
Not a consent
Not really much of an ACP as it is so generalized
Will be misleading to staff at home
High potential for misuse as will likely be treated as
if it’s a consent to guide care for Mrs Smith
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If Mrs Smith is not Capable to
Make Treatment Decisions
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Is the daughter her SDM, or just the person in the family that is
available to assist Mrs Smith on admission?
If Vera is the proper SDM, not a consent because Vera would
need info on mothers present health condition, specific
treatments proposed, risks, benefits, etc.
Not a plan of treatment as too generalized, not specific
treatments listed, not specific to Mrs. Smith’s health condition
Vera cannot ACP as only Mother when still capable could have
expressed wishes for herself
If completed by Vera will be misleading to staff at home
High potential for misuse as will likely be treated as if it’s a
consent to guide care for Mrs Smith
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If Mrs Smith is Not Capable to
Make Treatment Decisions
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If Vera is the proper SDM, she can give consent to a
plan of treatment that includes reference to no CPR
if:
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The present health condition of Mrs Smith is such that
discussion of CPR/no CPR is appropriate
If Vera has been given all info about Mrs Smith’s present
health condition
If Vera has been given all the information about this
treatment of CPR and its risks, benefits, etc for Mrs Smith
In these circumstances Vera is NOT advance care
planning but giving or refusing consent to a plan of
treatment
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Consent to Plan of Treatment
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Note that if the patient’s condition has
changed and the original plan of treatment
that the patient consented to is no longer
valid because of that change, and the patient
is now mentally incapable to give or refuse
consent to treatment, or a new plan of
treatment, then a new informed consent must
be obtained from the patient’s SDM
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Summary
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Consent to Plan of Treatment
Current health condition, where the
Implications are known
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Advance Care Plan
Future health condition the implications for
which may not be easily known to the person
Credit - Chris Sherwood
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Questions
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Any Questions about anything in this
presentation?
Advoccacy Centre for the Elderly 2010
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This webinar was brought to you by
CLEONet
For more information visit the Health and
Disability section of CLEONet at
www.cleonet.ca
For more public legal information webinars
visit:
http://www.cleonet.ca/training
2010, Community Law School
(Sarnia-Lambton) Inc.