Consent to Treatment, Admission to Long-Term Care Home
and Community Services
Community Care Access Centres
Client Services Policy Manual
September, 2006
 
4.9   Consent to Admission to a Long-Term Care Home
spaceron Behalf of an Incapable Person

The Community Care Access Centre (CCAC) is responsible for finding the authorized substitute decision-maker (SDM) for any person whom an evaluator has determined to be incapable of making a decision regarding his or her admission to a long-term care (LTC) home.

The search should continue until a person has been found who meets the requirements for a SDM under the Health Care Consent Act, 1996 (HCCA).

The CCAC should document efforts to locate a SDM, indicate who is the authorized SDM and how that person can be contacted.

Legislative references in subsection 4.9 are all from the HCCA.

4.9.1   Consent on Behalf of an Incapable Person

Consent on incapable person's behalf
s. 40(1)   If a person's consent to his or her admission to a care facility is required by law and the person is found by an evaluator to be incapable with respect to the admission, consent may be given or refused on the person's behalf by his or her substitute decision-maker in accordance with this Act.

Opinion of Board or court governs
s. 40(2)   If a person who is found by an evaluator to be incapable with respect to his or her admission to a care facility is found to be capable with respect to the admission by the Board on an application for review of the evaluator's finding, or by a court on an appeal of the Board's decision, subsection (1) does not apply.

As stated in subsection #4.8.1, a person's consent to his or her admission to a LTC home ("care facility" under the HCCA) is required by the three LTC home statutes.

4.9.2   Identifying a Substitute Decision-Maker

If a person is determined to be incapable of making a decision regarding admission to a LTC home, a SDM will make the decision on his or her behalf.

The criteria for identifying a SDM for this situation are the same as for cases regarding consent to treatment. (Subsection #4.5.3 contains the list of individuals who may act as SDMs in order of priority. Also see subsection #4.5.5 for role of the Public Guardian and Trustee.)

4.9.3   Information Needed by the Substitute Decision-Maker

The person making an admission decision on behalf of an incapable person has the right to receive all the information required in order to make the decision.

Information
s. 43(1)   Before giving or refusing consent on an incapable person's behalf to his or her admission to a care facility, a substitute decision-maker is entitled to receive all the information required in order to make the decision.

Conflict
s. 43(2)   Subsection (1) prevails despite anything to the contrary in the Personal Health Information Protection Act, 2004.

4.9.4   Requirements of a Substitute Decision-Maker

A SDM may give or refuse consent as long as he or she meets the requirements of a SDM as specified in the HCCA. (For requirements of a SDM, see subsection #4.5.4 , with necessary modifications : for example, the SDM making an admission decision must be capable with respect to the admission (not treatment).)

4.9.5   Principles for Giving or Refusing Consent

The HCCA requires the SDM to make decisions in accordance with any known wishes applicable to the circumstances that were expressed by the incapable person while capable and after reaching the age of 16 years and, if there are no such wishes, the decisions are to be made in the best interests of the incapable person. Best interests is a defined term (see subsection #4.9.6). In certain circumstances, the SDM or the CCAC may apply to the Consent and Capacity Board (the Board) (see definition of Board in subsection #4.7 or Appendix #A ) for directions about the expressed wishes, as described in subsection #4.10.4.

Principles for giving or refusing consent
s. 42(1)   A person who gives or refuses consent on an incapable person's behalf to his or her admission to a care facility shall do so in accordance with the following principles :
1.   If the person knows of a wish applicable to the circumstances that the incapable person expressed while capable and after attaining 16 years of age, the person shall give or refuse consent in accordance with the wish.
2.   If the person does not know of a wish applicable to the circumstances that the incapable person expressed while capable and after attaining 16 years of age, or if it is impossible to comply with the wish, the person shall act in the incapable person's best interests.

4.9.6   Best Interests of the Incapable Person

Best interests
s. 42(2)   In deciding what the incapable person's best interests are, the person who gives or refuses consent on his or her behalf shall take into consideration,
(a)   the values and beliefs that the person knows the incapable person held when capable and believes he or she would still act on if capable;
(b)   any wishes expressed by the incapable person with respect to admission to a care facility that are not required to be followed under paragraph 1 of subsection (1); and
(c)   the following factors :

1.   Whether admission to the care facility is likely to,
spaceri.   improve the quality of the incapable person's life,
spacerii.   prevent the quality of the incapable person's life from deteriorating, or
spaceriii.   reduce the extent to which, or the rate at which, the quality of the incapable person's life is likely to deteriorate.
2.   Whether the quality of the incapable person's life is likely to improve, remain the same or deteriorate without admission to the care facility.
3.   Whether the benefit the incapable person is expected to obtain from admission to the care facility outweighs the risk of negative consequences to him or her.
4.   Whether a course of action that is less restrictive than admission to the care facility is available and is appropriate in the circumstances.

Subsection 42(2) sets out what the SDM must take into consideration in making a decision based on the best interests of the incapable person.

4.9.7   Consent to Ancillary Decisions

Ancillary decisions
s. 44(1)   Authority to consent on an incapable person's behalf to his or her admission to a care facility includes authority to make decisions that are necessary and ancillary to the admission.

Collection and disclosure of information
s.44(2)   A decision concerning the collection and disclosure of information relating to the incapable person is a decision that is necessary and ancillary to the admission, if the information is required for the purpose of the admission and is not personal health information within the meaning of the Personal Health Information Protection Act, 2004.

Exception
s. 44(3)   Subsection (1) does not authorize the making of a decision concerning the incapable person's property.

If the person is incapable of managing his or her property, only the legally authorized SDM for property can make decisions about property, such as payment of the resident co-payment (see subsection #4.1.1).

4.9.8   Withdrawal of Consent

Withdrawal of consent
s. 45   Authority to consent on an incapable person's behalf to his or her admission to a care facility includes authority to withdraw the consent at any time before the admission.

4.9.9   When Admission Must Not be Authorized

Admission must not be authorized
s. 46(1)   This section applies if,
(a)   an evaluator finds that a person is incapable with respect to his or her admission to a care facility;
(b)   before the admission takes place, the person responsible for authorizing admissions to the care facility is informed that the person who was found to be incapable intends to apply, or has applied, to the Board for a review of the finding; and
(c)   the application to the Board is not prohibited by subsection 50 (2).

Same
s. 46(2)   This section also applies if,
(a)   an evaluator finds that a person is incapable with respect to his or her admission to a care facility;
(b)   before the admission takes place, the person responsible for authorizing admissions to the care facility is informed that,
spacer(i)   the incapable person intends to apply, or has applied, to the Board for appointment of a representative to give or refuse consent to the admission on his or her behalf, or
spacer(ii)   another person intends to apply, or has applied, to the Board to be appointed as the representative of the incapable person to give or refuse consent to the admission on his or her behalf; and
(c)   the application to the Board is not prohibited by subsection 51 (3).

Same
s. 46(3)   In the circumstances described in subsections (1) and (2), the person responsible for authorizing admissions to the care facility shall take reasonable steps to ensure that the person's admission is not authorized and that the person is not admitted,
(a)   until 48 hours have elapsed since the person responsible for authorizing admissions to the care facility was first informed of the intended application to the Board without an application being made;
(b)   until the application to the Board has been withdrawn;
(c)   until the Board has rendered a decision in the matter, if none of the parties to the application before the Board has informed the person responsible for authorizing admissions to the care facility that he or she intends to appeal the Board's decision; or
(d)   if a party to the application before the Board has informed the person responsible for authorizing admissions to the care facility that he or she intends to appeal the Board's decision,
spacer(i)   until the period for commencing the appeal has elapsed without an appeal being commenced, or
spacer(ii)   until the appeal of the Board's decision has been finally disposed of.

4.9.10   Crisis Admission

Section 46 (discussed in subsection #4.9.9) does not apply when the CCAC is of the opinion that the incapable person requires immediate admission to a LTC home as a result of a crisis or when the admission is for a definite number of days not exceeding 90.

Crisis
s. 46(4)   This section does not apply if the person responsible for authorizing admissions to the care facility is of the opinion that the incapable person requires immediate admission to a care facility as a result of a crisis.

Admission for definite stay
s. 46(5)   This section does not apply to a person's admission, or the authorization of a person's admission, to a care facility for a stay of a definite number of days not exceeding 90.

Definition of crisis
s. 39   In this Part, "crisis" means a crisis relating to the condition or circumstances of the person who is to be admitted to the care facility.

Under this definition, it is not considered to be a crisis if someone other than the person being admitted is experiencing a crisis. For example, a family in crisis does not warrant the admission of the incapable person to a LTC home without the consent of his or her SDM. The crisis must relate directly to the condition or circumstances of the person to be admitted. Circumstances could include the fact that the incapable person's primary caregiver is no longer available to assist with the person's care.

4.9.11   Crisis Admission of Incapable Person Without Consent

The CCAC may authorize the admission of an incapable person to a LTC home without the consent of the SDM, where the CCAC is of the opinion that the incapable person requires immediate admission as a result of a crisis and where it is not reasonably possible to obtain the immediate consent or refusal of the person's SDM. When admission is authorized under this provision, the CCAC is required to ensure that reasonable efforts are subsequently made to locate the person's SDM in order to obtain his or her consent or refusal of consent to the admission. It should be noted that prior to reaching this point in the admission process (that is, authorization of admission), the CCAC would have received an application for a determination of the person's eligibility for admission and would have determined the person eligible for admission.

Authorization of admission without consent
s. 47(1)   Despite any law to the contrary, if a person is found by an evaluator to be incapable with respect to his or her admission to a care facility, the person's admission may be authorized, and the person may be admitted, without consent, if in the opinion of the person responsible for authorizing admissions to the care facility,
(a)   the incapable person requires immediate admission to a care facility as a result of a crisis; and
(b)   it is not reasonably possible to obtain an immediate consent or refusal on the incapable person's behalf.

Search
s. 47(2)   When an admission to a care facility is authorized under subsection (1), the person responsible for authorizing admissions to the care facility shall ensure that reasonable efforts are made for the purpose of finding the incapable person's substitute decision-maker and obtaining from him or her a consent, or refusal of consent, to the admission.

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