Incapacity

If you believe a patient/client is incapable regarding a proposed treatment or treatment plan, you must tell them that you find them to be incapable. If your patient/client regains capacity with respect to a specific treatment or plan of treatment after consent was obtained from a substitute decision-maker, you must then tell them that they were found to be incapable to consent at that time.

If at any time your patient/client is sufficiently aware and communicative to understand, you must tell them that they had been found incapable. You are not required to tell your patient/client of a finding of incapacity if you believe they would not understand the information due their to age (e.g. newborn) or health condition (e.g. obtunded, or severe dementia).

When you inform a patient/client that there has been a finding of incapacity, you must:

1. Inform the patient/client, that you believe they are not capable of making their own decision with respect to the proposed treatment.

2. Disclose who the substitute decision maker is who will be making treatment decisions on their behalf.

3. Tell the patient/client that they may appeal the finding of incapacity or the choice of substitute decision-maker to the:

Consent and Capacity Board
151 Bloor Street West, 10th Floor
Toronto, Ontario M5S 2T5
1-866-777-7391
www.ccboard.on.ca

4. Help the patient/client exercise their rights by (as a minimum) referring them to the staff person in the hospital or health facility who provides assistance, or advise the patient/client to contact a lawyer; and

5. Provide this information in a very helpful and sensitive manner that is approachable, neutral and non-judgemental.

The situation and circumstance must be properly communicated to the patient/client. Using an interpreter or communication aid may be necessary, depending on the individual patient/client needs.

Glossary

Attorney for personal care: An attorney under a power of attorney for personal care given under the Substitute Decisions Act.

Consent and Capacity (the board): A board established by and accountable to the government. Its members are appointed by the government. The Board considers applications for review of findings of incapacity, applications relating to the appointment of a representative, and applications for direction regarding the best interests and wishes of an incapable person.

Capable: Means mentally capable; a person is capable if they are able to understand the information that is relevant to making a decision about the treatment and are able to appreciate the reasonable foreseeable consequences of a decision or lack of decision — capacity has a corresponding meaning.

College: College of Respiratory Therapists of Ontario.

CRTO: College of Respiratory Therapists of Ontario.

Emergency: When the person for whom the treatment is proposed is apparently experiencing severe suffering or is at risk, if the treatment is not administered promptly, of sustaining serious bodily harm.

Guardian of the Person: A guardian of the person appointed under the Substitute Decisions Act.

HPPC: Health Professions Procedural Code — Schedule 2 of the Regulated Health Professions Act.

Incapable: Mentally incapable with incapacity having a corresponding meaning.

Partners: Individuals who have lived together for at least one year and have a close personal relationship that is of primary importance in both lives.

Plan of Treatment: A plan that:

- - is developed by one or more health practitioners
  - deals with one or more health problems that an individual has, and may deal with one or more problems an individual is likely to have in the future given their current health
  - allows for administration of various treatments or courses of treatment.

Relatives: Related by blood, marriage or adoption.

Respiratory Care: Equivalent to Respiratory Therapy.

Respiratory Therapist (RT): A Member of the CRTO and includes Registered Respiratory Therapists (RRT), Practical (limited) Respiratory Therapist (PRT) or Graduate Respiratory Therapists (GRT).

Spouses: Individuals who are married to each other, or who are living in a conjugal relationship and have lived together for at least one year, have a cohabitation agreement or are the parents (together) of a child. Individuals living apart and separate are not spouses.

Treatment: Means anything that is done for a therapeutic, preventative, palliative, diagnostic, cosmetic or other health-related purpose, and includes a course of treatment or plan of treatment, but does not include:

- - assessment of a person’s capacity
  - assessment or examination to determine the general nature of an individual’s condition
  - taking a health history
  - communicating an assessment or diagnosis
  - admission to a hospital or other facility
  - a personal assistance service
  - a treatment that, in the circumstances, poses little or no risk of harm

REFERENCES

College of Nurses of Ontario (2017). Practice Guideline: Consent. Retrieved from: https://www.cno.org/globalassets/docs/policy/41020_consent.pdf (cno.org)
Health Care Consent Act (1996). Retrieved from: Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A (ontario.ca)
Health Protection and Procedure Act (1990). Retrieved from: R.R.O. 1990, Reg. 569: REPORTS (ontario.ca)
Regulated Health Professions Act, 1991, S.O. 1991, c. 18. Retrieved from: Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (ontario.ca)