The Substitute Decisions Act (the Act) is an act of the Legislative Assembly of Ontario in Ontario, Canada. It establishes the legal criteria determining when a person has the ability to make decisions that are fundamental to his/her well-being. The ability to make these types of decisions is termed capacity and the decisions are termed consent. Capacity establishes the legal right to consent to or refuse medical treatment, choose housing arrangements and manage one's money. However, there are different tests for capacity that vary according to the type of decisions that must be made. In some instances, capacity will exist for people who do not have full capacity in the common sense understanding of the concept.
Capacity and Incapacity
Capacity is presumed under the Act if the person is over 18 for management of property or 16 for personal care decisions. This means that before a person's right to make decisions for him/herself is removed it must be proven that they do not have capacity. Incapacity is the term for a person who cannot make these decisions.
In terms of personal care, incapacity is defined as not being able to "understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision." The key concepts are understanding information about a condition and appreciating the results of treatment options, including refusing treatment.
In terms of managing one's property, incapacity is similarly defined as being unable to "understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision."
Substitute decision-makers
If a person is found to be incapable they will have a substitute decision-maker appointed for them. A substitute decision-maker may be a family member, non-family members are exceptionally rare. The Office of the Public Guardian and Trustee may also be appointed to this role.
Whoever is appointed to make decisions for an incapable person is expected to make them in keeping with the same principles of the legislation, understanding the relevant information and appreciating the consequences of decisions. Decisions should also incorporate what can be reasonably known about the person's likely opinions, including preferences and cultural attitudes. A substitute decision-maker can be replaced if they are found to be not meeting their obligations.
Right to refuse an assessment
Under the Act, incapacity can only be determined by a formal assessment. However, a person has the right to refuse to be assessed. To ensure that this right is upheld, an assessor, prior to beginning an assessment must tell the person being assessed what they are doing, what is its purpose, what impact their finding will have and that the person being assessed has the right to refuse. If a person refuses to an assessment it cannot be conducted.
There are limits to a person's right to refuse an assessment. A Court may order an assessment of a person's capacity against their will if it determines that there are reasonable grounds to suspect that the person does not have capacity.
Assessment
The Capacity Assessment Office maintains a limited register of Capacity Assessors, who must be licensed physicians, psychologists, registered nurses, registered social workers or occupational therapists. Assessors must also hold liability insurance for up to $1,000,000, successfully complete a training course with the Capacity Assessment Office and complete ongoing continuing education. The Capacity Assessment Office does not make specific referrals, but they will provide the names of several Assessors based on a client's needs and location.
Assessments aim to answer the question of whether a person has capacity in keeping with the legislation. Exactly what methods they will use often depends on the skill set of the specific Assessor and the nature of the problem that they face. In other words, an assessment should always be comprehensive enough to understand a person's ability to make decisions for him/herself, but the decision may require only limited capacity. In this case, it can occur that a person who does not have full cognitive ability can still have capacity to make important decisions.