A SDM is someone who is entitled by law to make healthcare decisions on behalf of a patient when that patient lacks the capacity to make the decision for him or herself.[6] Health care decisions include decisions about treatment[7], admission into a long term care home[8] and personal assistance services[9] .

All three types of health decisions are explained in other Q and As. Everyone in Ontario has a SDM even if he or she has never prepared a Power of Attorney for Personal Care appointing someone to act in that role. The Health Care Consent Act includes a hierarchy of SDMs[10] that includes

This Hierarchy of SDMs is explained in another Q and A A SDM only has authority to make decisions while that patient is and remains incapable of making healthcare decisions. The SDM does NOT get continuing authority to make decisions for the patient after the patient becomes capable even if the SDM has made decisions for the patient during a temporary period of incapacity. However if the patient becomes incapable again for health decisions, then the SDM may act again.  Even if the medical chart or records list who is the SDM for the patient, that SDM  has no authority to act unless the patient is not mentally capable for the particular health decision.

The attorney named in a POA Personal Care does not have the right to make any decisions for the person who created the POA Personal Care when that person is still mentally capable to make their own health care decisions.  The attorney gets the right to make decisions ONLY after the person become incapable.[11]The person when capable may consent to have the health practitioners share information about their health condition and care options with their future SDM (the attorney) but the attorney has no right to this information without that specific consent while the person is capable. [12] 

If the person becomes incapable for health care decision making and the attorney named in the POA Personal Care is that incapable person SDM and meets the requirements to be SDM, the health practitioners are required to share that health information about the person with the attorney who is SDM. [13]

An attorney named in a POA Personal Care has no greater powers or authority than any other SDM in the hierarchy list when they are the SDM for health decision making. 

A substitute decision-maker is the person(s) who is entitled by law to make health decisions on behalf of an incapable person. It is the general term that applies to all types of SDMs.

“Attorney for personal care”[14] is a type of substitute decision-maker in the Health Care Consent Act SDM hierarchy list, explained in another Q and A.  It is the second highest rankling SDM in that list.

If one or more persons have been appointed as an Attorney for personal care by the patient when capable, they will ‘outrank’ non-appointed family members, whether that attorney is a family member or a friend.  For example, even though a person may have a spouse, he or she may choose to appoint a child as the SDM. In this case, the child appointed as the attorney in a POAPC will act as the SDM rather than the spouse.  

Someone may also choose to appoint a non-family member as an attorney in a Power of Attorney for Personal Care. In this case, that person and not family members will act as the SDM.

“Next of Kin” is not a term used in the Health Care Consent Act and does not appear in the hierarchy list. However all the “automatic” SDMs that may act without the patient having appointed them or without getting authority to act as SDM through a court order or order from the Consent and Capacity Board are all what is commonly thought of as “next of kin”. These are the patient’s spouse, partner, children, parents, brothers and sisters and other relatives. The term “next of kin” is not used in the legislation as it is too vague.  If that term was used, it would not be clear who would be entitled to act as SDM

A person always has an SDM for health care even if he or she has never prepared a POA Personal Care. Section 21 of the Health Care Consent Act is a hierarchy of SDMs[15]. The person in the incapable person’s life that is highest ranking on this hierarchy and that meets the requirements to be an SDM would be that person’s SDM.

Before a person has one of the three SDMs listed at the top of the hierarchy, someone must DO something to set up any of these. Someone would have to apply to court for a Guardian to be appointed for the incapable person. Someone such as a friend or family member or the incapable person would have to apply to the Consent and Capacity Board for a Representative to exist. The person themselves, when still capable, would have to prepare a POA Personal Care for it to exist. If a person has never prepared a POA Personal Care, and if there is no court order appointing a Guardian for that person and no Order from the Consent and Capacity Board appointing a Representative for that person, then that person’s automatic SDM would be a family member. None of the family would have to do anything to be the SDM for the incapable person other than being that particular type of family member of spouse, partner, child, parent, brother, sister, or other relative.

If a person becomes incapable and has no person in that SDM hierarchy that meets the requirements to be a SDM, then the Public Guardian and Trustee must step in to act as SDM.[16]

Other Q and As explain the SDM hierarchy in more detail.

Every person in Ontario automatically has an SDM for health decisions even if they have not done any planning and have not prepared a Power of Attorney for Personal Care appointing someone to act as their Attorney. For most people, their SDM will be their closest living relative(s) by blood or marriage or adoption.

The Health Care Consent Act includes a hierarchy list that sets out who would be the substitute decision maker for an incapable patient. The person(s) highest on that list who meet the requirements to be a substitute decision maker will be the one who will make decisions on behalf of the incapable patient. The following is the hierarchy of SDMs in the Health Care Consent Act.[17]

First on the SDM hierarchy list in the Health Care Consent Act is a “Guardian of the Person”.[18]  This person would be someone who has been appointed by the Superior Court to fulfil this role.[19] 

This person should be able to produce a court order (a document) confirming his or her authority as Guardian of the Person and the scope of that authority.   The court order will detail what types of decisions that that Guardian can make.

Unless the court order limits their authority, a Guardian of the Person, usually has authority to make all “personal care” decisions for the incapable person. These include decisions about shelter (where a person lives), nutrition, hygiene, clothing and safety in addition to health care decisions.[20] The court could limit the scope of the Guardian’s authority if the court determines that the person who is subject of the guardianship either is not incapable for particular types of decisions or the person doesn’t need a Guardian because the care of the person doesn’t require a formal decision maker because their needs are being met by less restrictive means.[21] 

The Guardian of the Person is not the same thing as the Guardian for Property of the incapable person or the Statutory Guardian (another type of Property decision maker) of the incapable person. The same person may be appointed by the Court to be Guardian of the Person and Guardian for Property or this same person may be the Statutory Guardian for the Person, but unless a person is the Guardian of the Person, they do not fall into this category of health decision-maker.  

Second on the SDM hierarchy list in the Health Care Consent Act is an Attorney named in a Power of Attorney for Personal Care with authority for health decisions.[22]There are two types of powers of attorney, the Power of attorney for property and the Power of attorney for personal care. Only the attorney named in a POA for Personal care has authority to make health decisions for an incapable patient. The patient when capable must appoint the attorney for Personal Care by preparing a Power of attorney document.  A person cannot just tell a health practitioner that they want to name a particular person as an attorney; they must sign a POA Personal Care Document. If a person becomes incapable to prepare a POA Personal Care, no other person can create a POA Personal Care for them.

To prepare a Power of attorney for Personal Care, a person has to be mentally capable for this purpose. He or she must have the ability to understand and appreciate what a POA Personal Care is, have the ability to understand whether the proposed attorney has a genuine concern for their welfare and appreciate that he or she may need to have the proposed attorney make decisions for them.[23]

A person that is an attorney for personal care should be able to produce a Power of Attorney for Personal Care document that has been properly signed and witnessed by two witnesses.[24] 

It is important to read the POA for Personal Care to make sure that the attorney named has the authority to make health decisions. The grantor of the POAPC may have excluded this authority although that is rarely done.  

It must be understood that a person can revoke a POA Personal Care.  Revoking a POA Personal Care means that it comes to an end and is no longer valid. If a person signs a second POA Personal Care, that second (later) POA Personal Care revokes the previous POA Personal Care unless the second POA Personal Care states that the person wants to have multiple POA for personal care.[25] 

Details about what is capacity to prepare a POA Personal Care, who can or can’t be named as an Attorney for personal care and who can and cannot be witnesses to a POA Personal Care are explained in other Q and As.

People who are witnesses to a Power of Attorney for Personal Care must be mentally capable.

Certain people cannot be witnesses to the Power of Attorney for Personal Care.

People that cannot be witnesses include the following1. The attorney or the attorney’s spouse or partner.

2. The grantor’s spouse or partner.

3. A child of the grantor (Children include stepchildren who the grantor treats as his or her child)

4. A person whose property is under guardianship or who has a guardian of the person.

5. A person who is less than eighteen years old.[26]

If a person that cannot be a witness has signed as witness, that will void the Power of Attorney for Personal Care document and it will not be in effect.  If it’s not in effect, then the person named as attorney is NOT the attorney for Personal Care.

Certain people cannot be appointed as an attorney even if a person would want to appoint them. The law prohibits certain people from being named as attorneys because of the high potential of conflict of interest. A person cannot name as his or her attorney for personal care anyone

unless the person is the grantor’s spouse, partner or relative.[27]This would exclude a PSW or nurse or other health provider providing care to the person from acting as his or her attorney unless they were related to the person. This also excludes retirement home and long term care staff and operators from being named as attorney of residents or tenants in those homes.

If a prohibited person has signed as witness or a prohibited person is named as attorney, the POA Personal Care is invalid and does not give any authority to the named attorney.  Health practitioners should turn to the next highest ranking SDM in that person’s life that meets the requirements to be an SDM. More information on Powers of Attorney are in other Q and As.

Two persons are “spouses” if they are:  

a) Married to each other; or

b) Have lived together in a common law relationship for at least a year orc) are the parents of a child together or d) have together entered into a cohabitation agreement under the Family Law Act  [35] 

Spouses may be two persons in a same sex or opposite sex relationship.

Two persons are not spouses if they are living separate and apart as a result of a breakdown of their relationship.[36] They don’t need to divorce to no longer be spouses if they are living separate and apart and both consider their relationship at an end.  

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 person's lives. [37] This could be friends who have lived together for at least one year in a non-sexual relationship and “have a close personal relationship that is of primary importance” in both their lives.  However being just a roommate or housemate with another person does not make them partners This definition was originally put in the legislation in 1992 to recognize same sex partnerships. Since 2004, the same sex partnerships have been recognized as “spouses”.

If no person meets the requirement to be a SDM, then the Public Guardian and Trustee is the incapable person’s substitute decision-maker. [40] The office of the Public Guardian and Trustee is a government agency under the leadership of a person that holds the position of Public Guardian and Trustee. The division in the office of the Public Guardian and Trustee that steps in to make treatment decisions for incapable people is the Treatment Decisions Unit. Documents that purport to override this default to the Public Guardian and Trustee as a last resort SDM are not appropriate and not legally enforceable. When the OPGT acts as SDM they have the same duties and responsibilities as other SDMs and do provide consent or refusal of consent to treatment after getting the relevant information about the incapable person’s health and the treatment options from the health practitioners,

The OPGT is both the last resort decision maker when a person doesn’t have any other SDM that meets the requirements to be an SDM and is also the SDM if two or more SDMs that are equal ranking (for example two attorneys named in a POAPC or three adult children) meet the requirements to be SDM but they cannot agree on a decision for the person.[41] If there is conflict between two or more equal ranking SDMs, the health practitioner should inform the multiple SDMs that can’t agree that he or she will need to get the decision about the health care for the patient from the OPGT. If after being told this and the multiple SDM still can’t agree or none of them will decide to decline to act (which then breaks the disagreement) then the health practitioner must contact the Treatment Decisions Unit at the OPGT . The contact information for the Treatment Decisions Unit as of January 2018 is as follows:

Treatment Decisions 595 Bay Street, Suite 800, Toronto, ON, M5G 2M6 Tel.: (416) 314-2788 Toll-free: 1-800-387-2127 Fax: (416) 314-2637

Hamilton Office 119 King Street West, 9th Floor, Hamilton, ON, L8P 4Y7 Tel.: (905) 546-8300 Toll-free: 1-800-891-0502 Fax: (905) 546 -8301

London Office 199 Dundas Street, 1st Floor, Suite 100, London, ON, N6A 1G4 Tel.: (519) 660-3140 Toll-free: 1-800-891-0504 Fax: (519) 660 -3148

Ottawa Office 351 Preston St., Suite 200, Ottawa, ON, K1S 2E6 Tel.: (613) 241-1202 Toll-free: 1-800-891-0506 Fax: (613) 241-1567

If the health practitioner thinks that the highest ranking SDM is not capable to make the treatment decisions, the health practitioner may turn to the next highest ranking SDM to make decisions for the incapable patient.

It is the obligation of the health practitioner to check that the SDM does meet the requirements to be the SDM. This obligation means that the health practitioner must consider whether the SDM is mentally capable to make the treatment decisions.

Unlike the patient who, if found incapable by the health practitioner, has the right to ask for a review of this finding of incapacity by making an application to the Consent and Capacity Board, the SDM found incapable has no right to make a similar application .

If the SDM wants to challenge this finding of incapacity by the health practitioner, he or she would have to apply to the Consent and Capacity Board to be named as Representative (the third highest SDM in the hierarchy) or apply to the Superior Court to be named the Guardian of the incapable person. In both these applications the CCB or the Court would have to consider the ability of the SDM applicant to make treatment decisions. That in part includes looking at whether the SDM is capable of making the treatment decisions that would have to be made for the incapable patient.

If the highest ranking SDM is not available in a reasonable time[43], relative to the need for a decision about treatment for the incapable patient, the health practitioner may turn to the next highest ranking SDM for the decisions for the patient.

SDMs don’t need to be at the bedside at all times to be “available”. It is important for SDMs to understand the need to be “available” in some way – in person, by phone, by email, by other means of communication in order to fulfil their role as SDM

If an SDM plans to be away, for example, on vacation and will not be available to make treatment decisions for the incapable patient, the SDM cannot delegate their decision-making authority to someone else. The health practitioners must go down the SDM hierarchy list to the next SDM to get the decisions for the incapable patient. [44]

More information about this lack of authority to delegate to another SDM is explained in another Q and A.

Any SDM may decline to act and tell the health practitioner that they are not “willing” to act as SDM even if named as Attorney in a POA Personal Care. [45]

The health practitioner should look at whether the POA Personal Care named more than one attorney to act “jointly and severally”. If there are multiple attorneys named in the POA document, the other attorney(s) would be able to still act as SDM.

Some POA Personal Care documents may include a clause stating that if attorney X is not available/ willing  to act as attorney , then another person is named in that document to act as attorney in their place. This is sometimes called a “waterfall” designation as it names people in a series who would have authority to act when the higher ranked attorney does not want to act as attorney.

If there is only one named attorney and that attorney does not want to act as SDM for the health decisions, that attorney cannot delegate someone else to act in their place. Only a person, when capable, may name someone to be their attorney in a POA document.  The attorney cannot assign that authority to someone else.

If that sole attorney does not want to act as SDM for health decisions, then the health practitioner needs to turn to the next highest ranking SDM that meets the requirements to act as SDM and get decisions for the incapable patient from that SDM.  

The health practitioner offering the treatment must consider whether the possible SDM is capable to make the treatment decision that must be made for the incapable patient.[46]  The SDM must pass the same capacity test as a person making a decision for him or herself.If the health practitioner believes that the highest ranking person in the hierarchy is not capable then the health practitioner must turn to the NEXT highest ranking person in the list that meets the requirements to be an SDM.

If it’s a decision about admission to long term care  the person responsible to determine the capacity of the SDM is the ” person responsible for authorizing admissions to the care facility”.[47] That would be the appropriate case coordinator at the Local Health Integrated Network that is taking the application for admission.

If it’s a decision about personal assistance services, the person responsible to determine the SDMs capacity is the person providing the personal assistance service to a recipient. That would be a health practitioner at the long term care home. Capacity and capacity assessment is discussed in other Q and As.

Denial of access orders may be made both in respect to children in family disputes but also to adults when family or others have applied to court to become the Guardian of the Person or the Guardian of Property to that person.  A separation agreement is a document that sets out the terms of separation of married spouses.  A married spouse may include in the separation agreement a statement that he or she does not want his or her former spouse to have any contact, even as a visitor, with him or her should he or she become incapable.

The separation agreement may also state that the separated spouses do not want each other to be SDMs for health decision making for each other. The Health Care Consent Act makes it clear that two persons that were “spouses” that are living separate and apart as a result of a breakdown of their relationship are no longer spouses for the purposes of substitute decision making therefore stating in a separation agreement that the former spouses do not want each other as SDMs is technically not necessary.  However including that clause in the separation agreement is additional confirmation of this and confirms that both parties have knowledge that they are no longer spouses for the purposes of health decision making. [48]

A person is available if it is possible, within a time that is reasonable in the circumstances, for the health practitioner to communicate with the SDM and obtain a consent or refusal.[49]

The SDM would meet this requirement if available by telephone or other means of communication. It does not mean that the SDM must be physically present at the bedside.The SDM must be available in a timely way in relation to the needs of the incapable patient to have the decision about the health care made. If the health practitioner cannot make contact with the appropriate SDM and believes that it would be harmful for the patient to delay getting the decision about the treatment, the health practitioner may turn to the next highest ranking SDM that meets the requirements to get the decision for the incapable patient. There is no particular time limit specified in the legislation.

Lack of availability at one time does not mean that the SDM is declining to act for all future decisions.

The highest ranking SDM that otherwise meets the requirements to act as SDM may not be available in a timely way to provide the substituted decision for the patient for a particular decision or may not want to make a particular decision, then entitling the health practitioner to turn to the next highest ranking SDM for the health decision for the incapable patient.

However that highest ranking SDM may be available for the next decision that needs to be made. That highest ranking SDM does not lose his or her authority to act as SDM just because he or she was not available at one time or declined at one time in the past  

It is important for health practitioners to return to that highest ranking SDM for the future decisions for the incapable patient unless that SDM states that he or she does not want to act at all and indicates that he or she wants to decline acting as SDM for the future.  

The health practitioner or a member of the health team may ask the SDM this question to clarify that both the SDM is aware of the requirements of acting as SDM – in particular being willing to act and being available in accordance with the patient’s needs – and whether the SDM wants to act as SDM or wants to decline this role on an ongoing basis.

If the SDM states that he or she wants to decline acting as SDM, the health practitioner or team member should confirm that this is being noted in the chart and that the health practitioners will then turn to the next highest ranking SDM that meets the requirements for future decisions.  That then removes the responsibility of checking back with that SDM for future decisions.

However it should be noted that that SDM who declined to act, and indicated that they understood that the next SDM that meet the requirements would be acting, may change their minds for future decisions and want to be the SDM again and the health practitioners would have to honour that .

If a person is an SDM he or she needs to understand the need to be available or also must determine if he or she wants to act as SDM on an ongoing basis, If the person who is entitled to be SDM does not want to take on this role then he or she should decline it and make that clear to avoid being contacted over and over again as to whether he or she wants to make a decision for the incapable patient.  

ALTHOUGH IT’S A GOOD IDEA TO TALK TO ALL THE EQUAL RANKING MULTIPLE QUALIFIED SDMS TO ENSURE THAT THE HEALTH PRACTITIONER KNOWS HOW MANY OF THEM WANT TO ACT AS SDM, IF ONE OF THE MULTIPLES IS CONTACTED AND ADVISES THE HEALTH PRACTITIONER THAT THE OTHER EQUAL RANKING SDMS WOULD NOT OBJECT TO HIM OR HER MAKING THE DECISIONS WITHOUT THEM, THE HEALTH PRACTITIONER MAY TAKE DIRECTIONS FROM THAT SDM IF THE HEALTH PRACTITIONER BELIEVES THAT PERSON OR HAS NO REASON TO DOUBT THAT REPRESENTATION.  THIS PERMISSION DOES NOT APPLY IF THE MULTIPLES ARE ATTORNEYS NAMED IN A POA PERSONAL CARE AND THE POA PERSONAL CARE STATES THAT THE ATTORNEYS ARE TO ACT JOINTLY. THIS ALSO IS THE SAME IF TWO PEOPLE ARE JOINT GUARDIANS OF THE PERSON NAMED IN A COURT ORDER OR ARE JOINT REPRESENTATIVES NAMED IN AN ORDER FROM THE CONSENT AND CAPACITY BOARD. IF THE POA PERSONAL CARE DOCUMENT OR COURT OR TRIBUNAL ORDER NAMES MULTIPLE SDMS AS JOINT DECISION MAKERS, THEY MUST ACT TOGETHER. 

Even if the health practitioner takes direction from the one SDM on the basis of this representation by him or her that the other equally ranked multiples would not object,   if the health practitioner is informed by ANY of those SDMs that were not part of the decision making, that they WANT to be part of the decision making for the patient, then the health practitioner must turn to whomever wants to act, and is entitled and qualified to act.

If the one SDM misrepresented to the health practitioner that the other equally ranked multiple SDMs would not object to the one SDM acting, the health practitioner is protected from liability if he or she had a good faith belief that the one SDM was telling the truth.

If there are multiple equally ranked qualified SDMs, they may decide amongst themselves which one of them will act or how many of them will act as SDM.

It would be reasonable for the healthcare provider to speak with all the SDMs to ensure that this is the group consensus, especially in cases where group conflict is suspected

Even if one of the multiple equal ranking SDMs declines to act at one point in the incapable patient’s illness as SDM, he or she is entitled to act as SDM again along with the other multiple equally ranked SDMs if he or she wants to at a future date.

If there are three equal ranking SDMs that want to make the decision, majority does not rule. All three must agree.

If equally ranked multiple SDMs cannot agree on a decision for the patient, the health practitioner MUST turn to the Public Guardian and Trustee for the decision and the PGT is required to act and cannot decline to act.[53] The Public Guardian and Trustee does not choose between the battling decision-makers but “shall make the decision in their stead.” It is important that health practitioners explain that to multiple equal ranking SDMs BEFORE contacting the OPGT. The health practitioner should try to resolve the conflict to see if the SDMs will agree or if one of more of the multiple SDMs may decide not to act so that there is a consensus amongst the remaining.

The health practitioner or health team may ask the SDMs that are in disagreement to consider mediation.

Health practitioners are required to explain to SDMs that the SDMs responsibility is to try to make health care decisions on behalf of the incapable person as that patient, if still capable, would have made the decision him or herself.[54] The SDMs should not be making decisions based on their own values and beliefs. The SDMs are required to make decisions by following the patient’s last capable wishes about health care. If no such wishes are known for the particular decision at hand, the SDMs are required to act in the patients “best interests”.[55] The SDMs should not be making decisions based on their own values and beliefs but should be deciding for the patient by following and applying the incapable patient’s previous capable wishes. If no wishes are known, then the SDM decides what is in the incapable patient’s best interests. Best Interests is legal term and is explained in another Q and A.

The health practitioner should ensure that all SDMs have an accurate understanding of the person’s current state of health and relevant treatment options. SDMs are entitled to have this information and that is not a breach of privacy.[56] Often conflict in decision-making arises when there is an incomplete or different understanding of the status or expected outcome of different options.

If mediation is not successful in helping the SDMs achieve consensus, the health practitioners must contact the Treatment Decisions Unit of the Public Guardian and Trustee. The contact information for the treatment decisions unit is currently (January 2018) as follows:

Treatment Decisions 595 Bay Street, Suite 800, Toronto, ON, M5G 2M6 Tel.: (416) 314-2788 Toll-free: 1-800-387-2127 Fax: (416) 314-2637

Hamilton Office 119 King Street West, 9th Floor, Hamilton, ON, L8P 4Y7 Tel.: (905) 546-8300 Toll-free: 1-800-891-0502 Fax: (905) 546 -8301

London Office 199 Dundas Street, 1st Floor, Suite 100, London, ON, N6A 1G4 Tel.: (519) 660-3140 Toll-free: 1-800-891-0504 Fax: (519) 660 -3148

Ottawa Office 351 Preston St., Suite 200, Ottawa, ON, K1S 2E6 Tel.: (613) 241-1202 Toll-free: 1-800-891-0506 Fax: (613) 241-1567

In making decisions on behalf of an incapable person, an SDM must:

These are referred to as the “Principles for giving or Refusing Consent” in s.21 of the Health Care Consent Act.

It is the duty of the Health practitioner or another member of the health team to inform the SDMs of these principles for giving or refusing consent.  This duty was made clear in a court case called M. (A.) v. Benes, 1999 CanLII 3807 (ON CA).

Before giving or refusing consent to a treatment on an incapable person’s behalf, a substitute decision-maker is entitled to receive from the health practitioner all the information required for an informed consent. This includes all relevant information about the patients’ health condition and the treatment options including information about the risk, benefits of the treatments, alternatives to the treatments and what would happen if a treatment was refused. [57] 

Providing this information to the appropriate SDM about the incapable patient’s personal health information is not a breach of privacy when the patient is incapable and the SDM must act as decision maker. [58]

When mentally capable, a person may express wishes[59] with respect to treatment, admission to a care facility or a personal assistance service.  The wishes are not informed consent or refusal to any health care and are not decisions but are important information that will help the person’s SDM make better decisions for the person if the SDM must be the decision maker if the person becomes incapable to make their own health decisions.  

The wishes are not “advance consent”.  Informed consent always must be obtained before health care is delivered and consent must come from a person – the person or the incapable person’s SDM – after the person or their SDM has all the relevant information about the person’s condition and treatment or health care options.[60] These wishes, a part of what is called advance care planning, are expressed without all this necessary information for an informed consent.  

The wishes are a key communication between the person and their future SDM since it is the SDM that will be required to make health decisions for the person if the person becomes incapable.  The wishes are not directions to health practitioners because health practitioners must always get informed consent to any health decision, except in emergencies, and cannot take direction from the wishes directly no matter what form the wishes were expressed. [62]Putting wishes in writing doesn’t change who takes directions from them. A person may change their wishes at any time when still capable. Later wishes expressed while capable prevail over earlier wishes.[63] 

The SDM must APPLY the capable wishes of the person, as well as the person’s values and beliefs, when making health decisions for the incapable person. .

This means that the SDM must determine:

The SDM doesn’t apply wishes literally but must interpret what the patient meant by the wish, particularly if the wish is a broad statement such as a wish about what quality of life means to the person.

If a wish expressed by the person when capable is impossible to honour, then the SDM does not have to follow it. Instead the SDM must decide what is in the best interests of the person since this wish cannot be followed.[65]  One example of a wish that might be impossible to honour is a wish by the person to remain living in their own home despite their poor health instead of moving to a supported or long term care living environment. There may not be sufficient assistance from home care available from both public and private sources to meet the person’s care needs. The person may not have enough help from family, friends and paid caregivers to remain at home. The person may not have the financial ability to supplement public services to remain at home. Another type of similar wish is the wish to die at home when at end of life. Although this may be what the person thinks they want, depending on their own needs as well as the supports they have from family, friends and health and other services, that wish may be impossible to honour despite best efforts. .

The term “best interests” has a specific definition in the law. This definition helps SDMs understand what they need to consider when acting in the person’s best interests. Health practitioners should use this definition of “best interests” in explaining this principle to SDMs and in discussing options for the incapable patient. .

The Health Care Consent Act states that to decide what the incapable person’s best interests are, the SDM is required to consider:

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 the treatment.

3. Whether the benefit the incapable person is expected to obtain from the treatment outweighs the risk of harm to him or her.

4. Whether a less restrictive or less intrusive treatment would be as beneficial as the treatment that is proposed.  [66]

If a health practitioner believes that an SDM is not following a patient’s previous capable wishes or is acting against the best interests of the patient, the health practitioner has a number of options.

It is the duty of the Health practitioner or another member of the health team to inform the SDMs of these principles for giving or refusing consent.  This duty was made clear in a court case called M. (A.) v. Benes, 1999 CanLII 3807 (ON CA).The health practitioner / health team / health facility may want to consider making available this type of information to SDMs in writing in pamphlet form, in an information sheet or posted on the walls or having videos in waiting rooms or online that explain this to facilitate SDMs learning of this obligation and to help the health practitioner fulfil this duty.

If the health practitioner still believes that the SDM is acting against the patient’s wishes or acting not in the best interests of the patient, the health practitioner does have a formal route that he or she may follow. This was included in the Health Care Consent Act to respect the role of the health practitioner as an advocate for the patient.  The health practitioner may apply to the Consent and Capacity Board (CCB) in what is called a Form G application “application to determine compliance with s. 21” under s. 37 of the Health Care Consent Act.

Details of the Form G application are described in another Q and A.

By making this application, the health practitioner is asking the Consent and Capacity Board for a determination as to whether the SDM is acting as required by the law.

On this application, the Consent and Capacity Board may confirm that the SDM is acting appropriately and is following the patient’s previous capable wishes or is acting in the patient’s best interests.

The Consent and Capacity Board may also decide that the SDM is not making decisions for the incapable person following these s. 21 principles

If that happens then the Consent and Capacity Board may give directions to the SDM as to what decisions to make that do comply with s.21 principles.[72]and give the SDM a time period[73] in which to comply with these directions. If the SDM fails to comply within the specified time period, the SDM would be considered as no longer meeting the requirements to be an SDM and would no longer be entitled to act as SDM for the incapable patient. [74] Any subsequent SDM stepping in to make decisions for the incapable patient would be required to comply with the directions given by the Board on the application within the time specified by the Board. If that subsequent SDM had information about the incapable patient’s previous capable wishes that were unknown at the time of the Form G application, the subsequent SDM may apply to the consent and Capacity Board, with the Board’s permission, to ask for directions. [75]

If a substitute decision-maker is required to refuse a treatment because the person when capable had made a wish for that refusal, but the SDM believes that the person if still capable would have changed their minds and consented to the treatment, the SDM may apply to the Consent and Capacity Board  for an order permitting the SDM to consent to that treatment .[77] This is called a Form E application to the Consent and Capacity Board to Depart from Wishes.

The SDM may believe that the person if still capable would have consented because the person could not have known what their health condition would be in the future when they wished to refuse the treatment.  The SDM having all the information that the patient. when capable, didn’t have may be in a better position to evaluate whether the consent to treatment should be given.

This application may also be made by the health practitioner treating the person. If the health practitioner makes this application, notice must be given to the SDM.  

The Consent and Capacity Board will give permission to the SDM to consent to that treatment refused in the previous capable wish if the Board is satisfied that the incapable person, if capable, would probably give consent because the likely result of the treatment is significantly better than would have been anticipated at the time the wish was expressed

If other family or friends of the incapable patient think that an SDM is not making appropriate decisions and is not honouring the patients previous capable wishes or not acting in the patients best interests, they have a number of options.

1. Talk to the SDM The family and friends should raise their concerns with the SDM particularly if the family or friends have information about the patient’s previous capable wishes that the SDM may not know about or appears to not understand.   The SDM must try to figure out what were the patient’s last known capable wishes and it may be that they weren’t aware of some later capable wishes that others know about. Ultimately it is the SDM that must decide what were the last known capable wishes and what the patient meant by those wishes, despite what others may say.
2. Talk to the incapable patient’s health practitioner The family and friends could talk to the patient's health practitioner and raise their concerns with him or her. If the health practitioner believes that the SDM is not making decisions for the incapable patient by honouring their previous capable wishes or acting in the patient’s best interests, the health practitioner may apply to the Consent and Capacity Board to ask the Board to review the SDMs decision making .This is called a Form G application.  Family and friends cannot make a Form G application.
3. Apply to the Superior Court or the Consent and Capacity Board , whichever is appropriate  to become the SDM in place of the SDM now acting

If the SDM that the family and friends disagree with is a family member of the incapable patient (spouse, partner, child, parent, brother or sister, other relative) and is not a court ordered Guardian of the Person, attorney named in a POA Personal Care or Representative appointed by the CCB, the family or friends that want to become the SDM can apply to the court for an order to be named as Guardian of the Person. The Guardian of the person is the first ranking SDM in the SDM hierarchy.  As an alternative an application can be made to the Consent and Capacity Board by the family or friends to be named as the patient’s Representative,

If the SDM that the family or friends disagree with is an Attorney for Personal Care the only application that can be made to outrank that SDM is to the court.

Whether it is the Court or the Consent and Capacity Board, the Court or Board would need evidence of why the family or friends applying for an order believe that the SDM is not acting appropriately as SDM and why the applicant would be a better SDM.