Lonny Rosen presented on Consent, Capacity and Substitute Decision-Making

Lonny Rosen spoke twice this week at Osgoode Professional Development on the topic of Consent, Capacity and Substitute Decision-Making: first as part of the faculty for the Osgoode Certificate in Health Law, and then for the Osgoode Certificate in Mental Health Law. The presentations reviewed: the Health Care Consent Act, 1996, the presumption of and test for capacity to make treatment decisions; the case law respecting capacity assessments; the hierarchy of substitute decision-makers (SDMs); and the factors upon which SDMs must give or refuse consent on behalf of an incapable person.

The key messages from the presentations were these: every person (regardless of age) is presumed to be capable to make decisions respecting treatment, admission to a care facility, and personal assistance services; if capable, the person is entitled to make a decision that others may view as foolish or wrong; an SDM is only permitted to give or refuse consent on behalf of the person if that person has been found by the health care practitioner proposing the treatment or admission to be incapable wtih respect to that decision; in those circumstances, the SDM can give or refuse consent, but must do so according to any wish expressed by the incapable person while capable, or in accordance with the incapable person's best interests.