chapter III

Question 1

what are the general principles of substitute consent under the Health Care Consent Act (HCCA)?

Answer 1

SDM must give or refuse consent based on prior wishes expressed by patient while capable and at least 16 years old

where no wish is known or it is impossible to comply with it; decision my be based on patient’s best interests

Question 2

when determining a patient’s best interests, what are the factors?

Answer 2

values and beliefs while 16 and capable

prior expressed wish while under 16 or incapable

whether condition or well being are likely to improve

whether benefits outweigh risks

whether less intrusive treatment would be as beneficial

Question 3

why would a SDM apply to the Consent and Capacity Board (CCB)?

Answer 3

SDM can apply to CCB
- for directions if prior wish is unclear
- for consent contrary to prior wish if patient would probably now consent because outcome significantly better than anticipated

SDM cannot apply to CCB or challenge a capable person’s decision or wish because it rash or medically unsound

SDM who acts in good faith in accordance with the Act cannot be held civilly liable

Question 4

who can exercise substitute consent for personal care? (5)

Answer 4

court-appointed guardian

power of attorney for personal care

personal representative

family member and others

public guardian and trustee (PGT)

Question 5

what safeguards are in place regarding substitue decision making?

Answer 5

regulated health professionals can apply to CCB if they believe SDM has not acted in accordance with prior wish or best interests

PGT must investigate allegations that incapable person is at risk of serious illness or injury, deprivation of liberty, or personal security

any person can apply to resolve question regarding guardianship or POA for personal care

Question 6

what is the hierarchy of SDMs under the Health Care Consent Act?

Answer 6

1. court appointed guardian
2. POA for personal care
3. personal representative appointed by CCB
4. spouse/partner
5. child, parent, or guardian
6. parent with only right of access
7. siblings
8. other relatives
9. PGT

Question 7

when may a SDM exercise authority among other SDMs?

Answer 7

if they believe no one is at the same or higher level (according to HCCA)

believes such a person exists but that person is not a court-appointed guardian, POA, or personal representative and that person would not object

Question 8

what happens if SDMs at the same level disagree?

Answer 8

PGT makes decisions

Question 9

describe the case: Re Superintendent of Family & Child Services v. Dawson (application of “best interests” test)

Answer 9

young boy required surgery or else he could die. his parents refused consent to surgery because they believed that their son’s life was painful and meaningless and that it was in the boy’s best interests to be allowed to die peacefully.

the Court overturned the parents’ refusal, stating that it could not approve the wilful withholding of vital treatment, except in the most exceptional circumstances.

It is not for the courts or parents to discount and decide for a disabled individual the value of his or her life.

Furthermore, there was evidence that withholding the surgery might not cause death immediately, but rather increase the boy’s pain and cause his condition to deteriorate further. The Court concluded that withholding the surgery was not in the child’s best interests and made the boy a temporary ward of the Children’s Aid Society, which then consented to the surgery

Question 10

describe the case: Janzen v. Janzen (application of “best interests” test)

Answer 10

man in vegetative state with no recovery

doctors recommended he be removed from life support. wife agreed and sister disagreed

both appealed. court sided with wife as the man didn’t have a high quality of life and he was unlikely to improve with treatment

Question 11

describe the case: Scardoni v. Hawryluck (application of “best interests” test)

Answer 11

Alzheimer’s patient that is non-verbal and can’t communicate, placed on ventilator

Doctor believed ventilator was not worth it and causing more harm than good

SDM (daughters) wished to continue treatment

Doctor applied to CCB

Daughters said mom was a devote roman catholic and wished to extend life and its sancity

CCB said her statement of faith was not sufficiently precise enough to substitue as prior wish

Daughters appealed to courts which overturned CCB’s decision. they said religious beliefs didn’t matter, but a patient’s personal beliefs did

Question 12

who has the authority to exercise substitute consent for property? (5)

Answer 12

1. court-appointed guardian for property
2. POA for property under Powers of Attorney Act
3. POA for property under Substitue Decisions Act
4. Statutory Guardian of Property under Mental Health Act
5. Statutory Guardian of Property according to the Certificate of Incapacity

Question 13

what are the general steps for substitute decision making for property?

Answer 13

third party may ask someone to submit a capacity assessment

individuals may arrange capacity assessment on their own

if assessors conclude that they’re incapable of managing property, must file certificate with PGT

PGT then becomes statutory guardian of property

POA, spouse, partner, or relative may apply to replace PGT

Question 14

what safeguards are in place for substitute decision making for property?

Answer 14

PGT must investigate any allegation that incapable person has lost or may be at risk of losing significant portion of assets

if PGT reasonably believes the intervention necessary, must apply to court to become temporary guardian of property

any person may apply to court to resolve questions regarding guardianship or POA for property

Question 15

what are the obligations of guardians and POAs of property?

Answer 15

fiduciaries: must act honestly and in utmost good faith for incapable person’s benefit

must encourage person’s participation as much as possible

must encourage regular personal contact between person and family/friends

must keep proper accounts

Question 16

what does the Substitute Decisions Act limit in regards to property?

Answer 16

gifts, loans, and charitable donations

Question 17

describe the case: Penny v. Bolen (SDMs & Property)

Answer 17

3/5 children were originally Bolen’s POAs for property. Bolen revoked their POA status, passing it her brother, out of concern for how they managed her property.

the children applied to have her capacity assessed.

the court held that there were no reasonable groups to oder another assessment and that Bolen has the capacity to revoke previous POSs.

Question 18

describe the case: Public Guardian and Trustee v. Cherneyko (SDMs & Property)

Answer 18

elderly woman becomes reliant on her POA neighbour for financial and personal affairs.

she transfers around a total of $450,000 to the neighbour and her niece.

she is later admitted to long-term care and diagnosed with dementia.

the neighbour’s son moves into the woman’s house.

PGT applies to have neighbour replaced as POA and have all the gifts repaid.

the courts said the woman was vulnerable to abuse as she was not capable of making all of these decisions

the courts said, as a fiduciary, you can’t intentionally stand to benefit from the position and not make prudent decisons

Question 19

what does the case, Revickzy v. Melenknia (SDMs & Property), show?

Answer 19

shows that: banks and other financial institutions have increasingly been held liable for failing to diligently review POAs or otherwise reasonably safeguard the financial interests of their elderly, incapable or other vulnerable clients.

Question 20

describe custody and substitute decision making

Answer 20

both parents are equally entitled to custody, unless court order or separation agreement provides otherwise.

either custodial parent may exercise substitute consent.

if parents live separate and apart, the parent with whom child lives is deemed custodial parent.
custodial parent has authority to make decisions on incapable child’s behalf.