Powers of Attorney for Personal Care Part 2 - The Health Care Consent Act
There are two Ontario laws that define the role of an attorney for personal care: the Substitute Decisions Act (SDA) and Health Care Consent Act (HCCA).
I have a favourite public speaking trick I use when I am invited to speak about powers of attorney, guardianships and other aspects of capacity law. First, I ask everyone to close their eyes. I then ask them to put up a hand if they have read the SDA or the HCCA. After I count the hands in the air, I ask anyone whose hand is in the air to lower it and then I invite everyone to open their eyes. I inform them of the (always) paltry number of persons in the room who had their hands in the air. On one memorable occasion, the only hands in the air were my own, and those of the two directors of the program at which I was speaking. This is always my lead-in to a key message I have for lawyers and other professionals:
Read the act.
Powers of attorney for personal care are created by statute. Lawyers, health practitioners and other professionals need to read these laws to understand how powers of attorney for personal care work.
This blog is about the role of an attorney for personal care in the HCCA. I tell my clients that the majority of decisions their attorney for personal care will make will be treatment decisions pursuant to the HCCA.
An attorney for personal care has two main roles as a substitute decision maker under HCCA.1
First, pursuant to the HCCA it is the attorney for personal care who usually acts as a substitute decision maker for a person who has been determined by a health practitioner to be incapable with respect to a treatment. It is the health practitioner who is responsible for determining if the grantor is capable with respect to the treatment and, if the grantor is incapable, responsible for obtaining consent from a substitute decision maker. The attorney does not make this decision. Rather, it is the attorney’s responsibility to respond to a health practitioner’s request that the decision be made.
This law applies to all treatment decisions, all health practitioners and in all settings, with the exception of emergency treatment. Treatment is defined in the HCCA, and some basic interactions between a patient and a health practitioner are excluded. For example, taking a health history from a person is not treatment.
Second, the HCCA governs admission to long term care homes (described in the act as a “care facility”). In this case, a determination about capacity is made by an “evaluator” as defined in the HCCA and its regulations. If the grantor is incapable of consenting to admission to a care facility, then provided that the power of attorney for personal care granted authority to the attorney to make a decision about admission to a care facility, the attorney will be the substitute decision maker.2
In both instances, it is not the attorney who decides that it is time to step in and make a decision on behalf of the grantor. The grantor’s incapacity to make the decision is decided by the health practitioner or evaluator. One way of looking at the role of an attorney in these circumstances is that it is reactive and is a responsibility. The attorney is the person responsible for making a decision on behalf of the grantor in response to a determination by a professional that the grantor is incapable of making that decision.
An attorney for personal care has other potential statutory decision-making responsibilities. A further one is pursuant to the HCCA and concerns the provision of personal assistance services to an incapable person residing in a care facility. The attorney for personal care is also substitute decision maker with respect to production of personal health information pursuant to the Personal Health Information Protection Act (PHIPA).
Sometimes I tell a client that decisions about treatment and admission to long term care will be 80%, 90% or 95% of the decisions his or her attorney for personal care will make. This advice is based on the assumption that because health practitioners are required to obtain informed consent it is more likely that an attorney will be required to make a decision pursuant to the HCCA than in other circumstances.
But we have seen during the pandemic that health practitioners working in long term care have given informed consent short shrift. Many stories emerged of family members, including attorneys for personal care, only hearing of a resident’s diagnosis of COVID-19 after the resident had died. These stories have illustrated the failure of powers of attorney for personal care to fulfil their promise of being tools for the exercise of personal autonomy by the grantor. The person the grantor has chosen to make treatment decisions is not involved unless the health practitioner follows the law.
I can’t be precise about how often informed consent is not sought from an attorney for personal care, or what percentage of decisions an attorney for personal care makes are treatment decisions. The use of powers of attorney for personal care has rarely been studied, if at all. It is hard to know how well a law works when its effects are not studied.
When an attorney for personal care is called upon to make a treatment or admission decision, there are rules and guidelines the attorney is supposed to follow. These will be the subject of my next blog.
1 In Ontario, a person who signs a power of attorney document is called a grantor. The person appointed by the document is called an attorney. In Ontario, the term attorney is not used to refer to a lawyer.
2 In some cases, the power of attorney for personal care excludes authority to make a decision about admission to a care facility. This issue will be discussed in a future blog. It does not happen often.