The Legal Guide to Consent, Capacity and Substitute Decision-Making 2024
Program Chair
Jane Meadus
Staff Lawyer, Institutional Advocate, Advocacy Centre for the Elderly
Consent, capacity and substitute decision-making remain fundamental issues for anyone working in health care.
As a health-care professional or advisor, you face complex questions on these challenging concepts. Issues of informed consent, powers of attorney, capacity assessments, when to call the OPGT and preparing for a hearing before the CCB are matters you face on a routine basis, but the questions surrounding them seem far from “routine.”
Designed with direct feedback from those working on the front lines in health care, this program will provide you with the critical knowledge and practical strategies you need to confidently manage the risks and meet your obligations.
Registration includes 120-day unlimited, online access to the recorded program.
What You’ll Learn
The law that guides your actions: how it all fits together
Advance care planning and informed consent under HCCA
Where does the authority for a capacity assessment come from?
The role of the CCB: what applications can be made and by whom?
Reaching out to the OPGT to determine if there is property guardian or court-appointed personal care guardian
Managing conflict between family members/substitute decision-makers
The role and scope of authority of substitute decision-makers
Best practices for dealing with privacy issues related to the release of personal health information
The role of patient wishes, advance care plans and other documents in consent
Who Should Attend
Managers, Administrators and Operators of Long-Term Care operations
Retirement Home Managers, Administrators and Operators
Hospital Administrators
Community Healthcare
Family Health Teams
Directors of Resident Care
Health Professionals
Risk Managers
Social Workers
Patient Care Advocates
In-House Lawyers and Counsel in Long-Term Care, Retirement, Hospitals
Lawyers Practicing Health and/or Elder Law
Faculty
Program Chair
Jane Meadus
Staff Lawyer, Institutional Advocate, Advocacy Centre for the Elderly
Instructors
Dr. Carole Cohen, MDCM
Clinical Director, Community Psychiatric Services for the Elderly, Sunnybrook Health Sciences Centre
D’Arcy J. Hiltz
Barrister & Solicitor
Gillian Kafka
Senior Legal Counsel, Kate Dewhirst Health Law
Rhonda Kearney
Treatment Decisions Consultant, Ministry of the Attorney General, Office of the Public Guardian and Trustee
Crystal Liu
Counsel, Ministry of the Attorney General, Office of the Public Guardian and Trustee
“Very personable speakers kept issues practical and provided many helpful examples”
Agenda
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 thoughtful 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?
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, including:
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
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 health‑care setting, 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?
Lonny Rosen, Rosen Sunshine LLP
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
Gillian Kafka, Senior Legal Counsel, Kate Dewhirst Health Law
Framework for consent, capacity and substitute decision‑making: where do the Health Care Consent Act and Substitute Decisions Act fit in?
Access to, correction of and release of health records
Who can request?
What to ask for?
Records of the deceased
Transitions in care: sharing of information
Local health integrated network staff
Landlords
Options to control the flow of information
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? 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?
Patrick A. Wright, 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?
Patrick A. Wright, Borden Ladner Gervais LLP Michael D. Newman, Vice‑Chair, Senior Lawyer Member, Consent & Capacity Board Mercedes Perez, Perez Bryan Procope LLP
Experiencing a mock CCB hearing will provide you with 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 and conducting hearings effectively. This is the perfect opportunity for you to ask those pressing questions.
Crystal Liu, Counsel, Ministry of the Attorney General, Office of the Public Guardian and Trustee Rhonda Kearney, Treatment Decisions Consultant, 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
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.
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