Consent, Capacity and Substitute Decision Making

The Fundamentals of Consent and Capacity

Roadmap, Overview of the Course and Introduction to Key Legislation

This opening session provides a high-level roadmap of Ontario’s legislative framework governing consent, capacity, and substitute decision-making.

•  Summarize the purpose and scope of HCCA, SDA and PHIPA
• Recognize how these laws intersect and apply in practice
• Identify ethical and professional responsibilities when navigating these frameworks
• Ethical duties in applying legislation fairly and transparently
• Consideration of systemic barriers for seniors and marginalized groups

A Deep Dive into the Health Care Consent Act, Substitute Decisions Act and Personal Health Information Protection Act

• Apply statutory requirements for consent and capacity in real-world scenarios
• Analyze obligations related to privacy and confidentiality under PHIPA
• Identify strategies for resolving conflicts between health care providers, patients and substitute decision-makers
• Ethical handling of privacy breaches and conflict resolution
• Inclusive consent practices for individuals with disabilities or language barriers
• Mitigating bias in capacity assessments

Informed Consent Across Care Settings

Explore the legal and ethical requirements for informed consent in hospitals, clinics and home care environments. This panel will examine consent for treatment, admission, long-term care and personal assistance services, offering strategies for effective communication and documentation in diverse care settings.

• Explore the components of valid informed consent
•  Implement best practices for documenting consent across care settings
• Address challenges in obtaining consent from vulnerable populations

Presumption of Capacity and Grounds to Rebut Presumption

Delve into the legal presumption of capacity and the circumstances under which it can be challenged. This session addresses fluctuating capacity, the evidentiary test for rebuttal, and the ethical considerations involved in assessing and documenting capacity.

Introduction to Substitute Decision Making

This session introduces the roles and responsibilities of substitute decision-makers, the hierarchy established by legislation, and practical issues that arise when implementing decisions on behalf of incapable individuals.

Capacity, SDM and PGT

Evaluations and Assessments of Capacity

This session explores who assesses capacity, when evaluations are required, and the legal standards under Ontario law. Topics include treatment, admission to long-term care, personal assistance services, personal care (SDA), statutory guardianship, and granting POAs. The role of the Mental Health Act and duties of professionals will also be addressed.

• Distinguish between evaluation and assessment of capacity
• Identify statutory requirements for capacity in different contexts
• Understand roles of lawyers, clinicians and assessors
• Ethical duties in capacity assessments, bias mitigation, accessibility for vulnerable populations

The Lawyer-Client Relationship and Legal Capacity

Examine the intersection of legal capacity and the lawyer-client relationship. Topics include:

• Deemed capacity to Instruct
• Ability to instruct counsel
• Rules of Professional Conduct for Lawyers – Rule 3.2-9
• Rules of Civil Procedure, Rule 7
• Family law considerations – acting for incapable adults
• Introduction to the PGT and the Office of the Children’s Lawyer

Decision Making on Behalf of Incapable People

Explore substitute decision-making mechanisms including:

• Powers of Attorney and Guardianships
  • What are they?
  • What are their obligations?
  • What are their limitations?
• Trusteeships for government benefits (OAS/GIS, CPP, ODSP, OW)
• The authority for Minister of Indigenous Services to manage property of incapable persons pursuant to the Indian Act 
• Representatives appointed under HCCA 
• Obligations of those seeking consent from SDM’s on behalf of an incapable person

SDM Case Study/Workshop

This session will include an interactive case study where participants analyze a scenario from various perspectives, discuss processes and identify roles and outcomes. Facilitators will guide group discussions to reinforce practical application of legal principles.

• Apply statutory and ethical principles to real-world scenarios
• Collaborate to resolve complex consent and capacity issues
• Identify best practices for communication and documentation

The PGT, PHIPA and Other Capacity Related Issues

Consent and Capacity Considerations Found in Diverse Communities

Explore how consent and capacity issues manifest across diverse communities. We begin with an overview of cultural awareness and EDI principles, followed by focused discussion on various community-specific considerations

Overview

This session will set the framework for how Ontario’s consent and capacity laws apply across populations and introduces participants to the ways Ontario’s consent and capacity laws apply across diverse community groups, and why culturally aware, EDI-informed practice is essential.

Indigenous Community

• The importance of trauma-aware and culturally grounded communication
• Impacts of colonial and jurisdictional histories on trust and access
• Barriers created by documentation, language, or systems navigation

Participants will learn strategies for building respectful, rights-affirming relationships and implementing Ontario’s legislative frameworks in culturally safe ways.

Diverse Cultural Communities 

• Culturally safe approaches to consent discussions, addressing mistrust rooted in historical and ongoing harms
• Ensuring meaningful access to information
• Understanding the impacts of anti-Black racism on assessments of credibility, capacity, and decision-making ability

Strategies for bias-aware practice and effective cross-cultural communication will be highlighted.

Disability

• The difference between disability and incapacity
• Disability as an equity category under human rights law
• Ensuring accessible, supported decision-making pathways
• The risk of diagnostic overshadowing
• The need for accommodation and communication supports
• Legal obligation to facilitate understanding before finding incapacity

Homeless and Under-Housed Populations

This session examines the unique barriers faced by individuals who are homeless, precariously housed, or living in shelters, including stigma, lack of documentation, difficulty maintaining continuity of care, mistrust of institutions, and competing priorities such as safety and shelter. The discussion will focus on equitable approaches to consent, capacity assessments, PHIPA considerations for transient patients, trauma-informed communication, and strategies to support participation in decision-making despite instability or marginalization.

Older Population

This session explores common consent and capacity issues in older populations, including fluctuating capacity, cognitive decline, challenges with obtaining valid consent, and frequent involvement of substitute decision-makers.

The session will address capacity to consent to treatment, admission to long-term care, and personal assistance services, as well as issues related to autonomy, risk tolerance, and the impact of ageism on assessments.

Asian community

This session highlights the consent and capacity considerations relevant to Asian communities, including the role of family dynamics, cultural expectations around collective decision-making, language barriers, stigma related to mental health or incapacity, and the need for skilled interpreter support. Participants will learn strategies for navigating culturally sensitive conversations while adhering to Ontario’s individual-based consent model, privacy requirements, and SDM hierarchy.

Office of the Public Guardian and Trustee

• Statutory guardian
• Documentation required when referring to OPGT
• Decision-maker of last resort
• Investigations
• Litigation on behalf of incapable persons
• Professional duties when no appropriate SDM exists
• Equity considerations when vulnerable persons lack supportive networks

Privacy and PHIPA

This session examines how privacy obligations under the Personal Health Information Protection Act (PHIPA) intersect with consent and capacity. Using recent cases and practical examples, speakers will address

• Capacity to consent to disclosure
• Access to records
• Navigating family requests for information
• The “lockbox” sharing information within the circle of care
• The limits on disclosure to non-custodians

Interpersonal Relationships

This session explores the legal tests for capacity in personal and intimate relationships, including consent to sexual activity, capacity to marry, capacity to separate, and capacity to have visitors. Presenters will unpack how autonomy, vulnerability, risk, and safety intersect, and how professionals should respond when personal relationships raise concerns about exploitation, undue influence, or impaired decision-making.

Patients in Custody

This session examines consent and capacity issues when patients are detained by police or corrections. Topics include:

• The rights of patients in custody
• Responsibilities of frontline hospital staff
• Communication and safety protocols
• Privacy considerations when law enforcement is present
• Lessons from the Hasan Inquest

Emphasis will be placed on navigating dual obligations, clinical and legal, while safeguarding autonomy and dignity.

Technology in Healthcare Space

This session explores how emerging technologies—such as in-room cameras, monitoring devices, special beds, alarms, and smart sensors—intersect with consent, privacy, and capacity law. Discussion will include:

• Whether consent to monitoring constitutes “treatment” under the HCCA
• Who can give consent
• Assessing risks and benefits for incapable individuals
• Balancing safety with autonomy

Gaps in Legislation

This closing session analyzes persistent legislative gaps related to consent and capacity in non-regulated residential settings (retirement homes, group homes, supportive housing, and other congregate living environments). Topics include:

• Who consents to residing in a setting when the person is incapable
• Who signs tenancy or care agreements
• The “retirement home admission gap” where no SDM exists
• Financial responsibility for placement

The Role of the CCB and Other Legal Processes

Intro and Role of the Consent & Capacity Board

• Overview of the CCB’s statutory mandate under HCCA, MHA and SDA
• Types of applications the CCB can hear
• Obligations when preparing or advising clients for a quasi-judicial hearing
• CCBs role in safeguarding vulnerable populations’ rights
• Procedural rights before the Board

Role of the CCB & Demonstration/Q&A

This session will include a live mock CCB hearing based on a treatment capacity case, followed by a discussion/Q&A

• Who are the parties?
• What does the CCB do, the process, preparing for a CCB hearing
• When do you need a lawyer?
• Managing conflicts of interest (eg. Between SDMs and patients)
• When are you over your head? When do you need to ask for help?
• Identifying and mitigating bias is witness assessments
• Ensuring inclusive participation in hearings

Group Discussion – What Will the Decision Be?

Following the live demo, we will do an interactive polling de-brief to see what your thoughts are on the outcome of hearing and hear from the demo participants on why they did what they did/said what they said, their strategies etc….

Tips for Preparing for the CCB

Other Legal Processes: Court

• How does capacity factor into the work of the court?
• How do these courts function when there are concerns of capacity?

Section 3 Counsel/Amicus 

• Statutory role of Section 3 Counsel under SDA in proceedings and appeals
• Amicus roles in criminal and capacity-related proceedings
• Court authority and limits on amicus involvement

Civil Procedure

• Rule 7 (Litigation Guardians) requirements and practice including ethical responsibilities
• Managing conflicts between litigants and guardians
• Appeals from the CCB to Superior Court
• Ensuring vulnerable litigants can meaningfully access civil justice processes

Other Administrative tribunals

• Overview of 12 tribunals with a focus on 8 social justice tribunals
• Tribunal specific rules, jurisdiction and process
• How are litigation guardians appointed for the social justice tribunals?

Hot Topics, Case Law and Trends

Medical Assistance in Dying (MAiD) 

• How to assess capacity throughout the MAiD process
• Interrelationships between SDMs and MAiD
• Managing conflict when family members oppose patient’s MAiD decision
• Ensuring accurate and neutral documentation
• CMPA perspective: liability concerns, documentation expectations, interdisciplinary communication
• Avoiding assumption about “quality of life” that may influence MAiD conversations
• Inequities in MAiD access
• Culturally safe communications

End of Life

• Role of prior capable wishes under HCCA vs “best interests” analysis
• Responsibilities to avoid pressuring SDMs or patients in crisis
• Ethical communication around capacity, prognosis and end-of-life realities
• Avoiding discriminatory assumptions about families’ motivations or cultural practices

Trauma Informed Lawyering 

• How trauma affects client capacity, instruction-giving and credibility
• Recognizing trauma symptoms in clients
• Adhering to civility and empathy in trauma-heavy environments

Consent by Minors

• Application of HCCA to minors – no age cut-off for capacity
• Consent for medical treatment when parents/guardians disagree
• When CAS must be called: legal threshold of harm vs parental autonomy
• Managing disagreements between care teams and families
• Proper documentation of a minor’s capacity assessment
• Cultural differences in parental roles and expectations
• Ensuring meaningful participation of youth with disabilities, language barriers

Complex Transitions in Care & Discharge Planning 

• Legal obligations for discharge
• Capacity to consent to discharge vs. capacity to decide where to live
• Discharge involving mental health, dementia, homelessness or substance use
• Ethical discharge planning: dignitary-respecting communication
• Managing complex family dynamics
• Vulnerabilities for racialized seniors, immigrants and disabled persons

Recent Case Law and Trends

• Recent CCB decisions shaping residence, capacity and treatment issues
• How to read a case efficiently
• Using CANLII: advanced search techniques for health law
• Ethical use of case law in advocacy
• Court cases highlighting inequities
• Ensuring equitable representation in capacity proceedings

Future of Consent and Capacity: Panel Discussion

• Emerging reforms
• Pressures shaping the future (aging population, system strain)
• Ethical challenges in integrating technology (AI, digital health records)
• Inclusive policy development and community consultation