Consent, Capacity and Substitute Decision-Making 2022

8:30 a.m.
Program Log‑in

8:45 a.m.
Welcome from the Chair

Jane E. Meadus, Staff Lawyer, Institutional Advocate, Advocacy Centre for the Elderly

To open the day, a complex scenario will be presented, designed to elicit thought and discussion about some of the key issues that will be discussed throughout the day. Goals will include:

• Understanding rules of informed consent
• Being able to determine when capacity should be evaluated, by whom, and rights of patient
• Identifying the correct substitute decision‑maker, their role and scope of authority
• Managing conflict between family members/substitute decision‑makers
• Issues related to the release of personal health information
• What is the role of patient wishes?

9:00 a.m.
Understanding the Law That Guides Your Actions and How It All Fits Together

Jane E. Meadus, Staff Lawyer, Institutional Advocate, Advocacy Centre for the Elderly

This session will review the legislation in Ontario related to consent, capacity and substitute decision‑making and explain how they intersect.

• Substitute Decisions Act
• Health Care Consent Act
• Mental Health Act
• Personal Health Information Protection Act
• Long‑Term Care Homes Act
• Powers of Attorney Act
• Child and Family Services Act
• Ontario Disability Support Program Act
• Old Age Security Act
• Canada Pension Plan

9:30 a.m.
Understanding the Substitute Decisions Act: From Property Management to Personal Care

D’Arcy J. Hiltz, Barrister & Solicitor
Alexander Procope, Perez Bryan Procope LLP

Using case studies of common scenarios when substitute decision‑making issues arise in a healthcare setting and with COVID‑19 as a backdrop, you will learn:

• What is the authority of the Substitute Decisions Act?
• When can you give a continuing power of attorney for property or personal care? When do they become effective?
• What is the test for capacity for property management under s. 6 of the Substitute
Decisions Act?
• Recognizing the different types of substitute decision‑makers for property management
• What is the role for wishes under a power of attorney for personal care?
• Who determines capacity for personal care issues?
• What happens if there is no power of attorney for personal care?
• When do you need a capacity assessment and what are the rules under the Substitute Decisions Act?

10:30 a.m.
Wellness Break

10:45 a.m.
Understanding the Health Care Consent Act: Informed Consent and Advance Care Planning

Judith A. Wahl, Wahl Elder Law

• What is informed consent?
• What is capacity under the Health Care Consent Act?
• Role of the health practitioner
• Issues in informed consent and advance care planning under the Health Care Consent Act
– Who evaluates capacity and when?
– Identification of the substitute decision‑makers
– Dealing with difficult substitute decision‑makers/situations
– Role of wishes, advance care plans and other documents in consent
– Refusal of treatment vs. incapacity
– End of life decisions

11:45 a.m.
Health Privacy: Hidden Issues to Help Navigate the System

Brendan Gray, Health Law Counsel, Office of the Information and Privacy Commissioner of Ontario

• Consent, capacity and substitute decision-making under the Personal Health Information Protection Act, 2004:
– Substitute decision-making on behalf of capable and incapable individuals
– Special considerations in relation to children
– Role of estate trustees for deceased individuals
– Role of substitute decision-makers under the Health Care Consent Act, 1996 and Substitute Decision Act, 1992
• Substitute decision-making under the Freedom of Information and Protection of Privacy Act and its municipal counterpart

12:15 p.m.
Lunch

1:00 p.m.
Capacity Assessments and Evaluations of Capacity: When and How?

Dr. Carole Cohen, MDCM, Clinical Director, Community Psychiatric Services for the Elderly, Sunnybrook Health Sciences Centre

• Capacity assessment versus an evaluation of capacity: which one applies and when
• Where does the authority for a capacity assessment come from?
• When do you need to call a capacity assessor?
• Capacity assessors: who they are; what they do; when you should call them
• Conducting an evaluation of capacity for treatment decisions: the specifics
• Capacity assessments and evaluations in the
time of COVID
• How have capacity assessors adapted to COVID reality?
• What restrictions are being imposed by COVID in LTC settings?

1:45 p.m.
Preparing for a Hearing at the Consent and Capacity Board (CCB)

John Hunter, Borden Ladner Gervais LLP
Michael D. Newman, Vice‑Chair, Senior Lawyer Member, Consent & Capacity Board
Mercedes Perez, Perez Bryan Procope LLP

• What is the CCB?
• When does the CCB become involved?
• What applications can be made to the CCB?
By whom?
• What is the jurisdiction of the Board?
• Have preparations changes due to COVID?
• The structure of a CCB hearing
• The roles of the various parties
• Before the Hearing: tips on how to prepare
• Appearing before the CCB: what you should know
• How are hearings being conducted during COVID?

2:30 p.m.
Wellness Break

2:45 p.m.
The CCB Hearing: Discussion and Q&A

John Hunter, Borden Ladner Gervais LLP
Michael D. Newman, Vice‑Chair, Senior Lawyer Member, Consent & Capacity Board
Mercedes Perez, Perez Bryan Procope LLP

In advance of the conference you will receive a recording of a mock CCB hearing to review. The recording will give you insights into what an actual hearing looks like. During this session, our panelists will open the floor to questions while discussing the hearing, roles of the various parties, conducting hearings effectively and how COVID‑19 has impacted the manner in which hearings are being conducted. This is the perfect opportunity for you to ask those pressing questions.

3:45 p.m.
The Office of the Public Guardian and Trustee’s Treatment Decisions Unit: Its Role and What You Can Expect

Salvatore Maietta, Treatment Decisions Consultant, Ontario Ministry of the Attorney General, Office of the Public Guardian and Trustee
Sarah Jones, Counsel, Ontario Ministry of the Attorney General, Office of the Public Guardian and Trustee

This session will focus on the OPGT’s responsibility to make decisions on behalf of incapable people where medical treatment is proposed and there are no other people, such as a relative, who are available, capable and willing to do so. Specific topics include:

• What is the role of the PGT in treatment decision‑making?
• When and how to contact the PGT
• How to get the PGT involved where there are SDMs who don’t agree
• What is the “turn around” time?
• Why won’t the PGT sign Advance Care Directives?
• Will the PGT make decision around DNRs?
• Will the PGT make decisions around end of life?
• How to get the PGT involved in property issues
‑ who’s making decision about housing but you pay

4:30 p.m.
Wrap‑Up and Q&A Discussion

Jane E. Meadus, Staff Lawyer, Institutional Advocate, Advocacy Centre for the Elderly
Mercedes Perez, Perez Bryan Procope LLP

Closing out the day will be a dedicated Q&A session giving you the opportunity to ask those burning questions that have arisen from the presentations throughout the day. The interactive format will reinforce your understanding of the issues and provide you with insights from both the presenters and your peers. You’ll leave with tools and strategies for addressing the complex issues of consent and capacity in your organization.

4:45 p.m.
Program Ends