54.1 An application to the Board under section 51, 52, 53 or 54 shall be deemed to include an application to the Board under section 50 with respect to the person’s capacity to consent to his or her admission to a care facility unless the person’s capacity to consent to such admission has been determined by the Board within the previous six months.  2000, c. 9, s. 41. Section Amendments with date in force (d/m/y) 2000, c. 9, s. 41
- 1/12/2000 2007, c. 8, s. 207 (12) - no effect - see Table of Public Statute Provisions Repealed Under Section 10.1 of the Legislation Act, 2006 - 31/12/2017 2017, c. 25, Sched. 5, s. 53 - no effect - see Table of Public Statute Provisions Repealed Under Section 10.1 of the Legislation Act, 2006 - 31/12/2017 54.2 Section Amendments with date in force (d/m/y) 2007, c. 8, s. 207 (13) - no effect - see Table of Public Statute Provisions Repealed Under Section 10.1 of the Legislation Act, 2006 - 31/12/2017 2017, c. 25, Sched. 5, s. 53 - no effect - see Table of Public Statute Provisions Repealed Under Section 10.1 of the Legislation Act, 2006 - 31/12/2017 Note: On a day to be named by proclamation of the Lieutenant Governor, the Act is amended by adding the following Part: (See: 2017, c. 25, Sched. 5, s. 60) Part III.1   Confining in a Care Facility General Application of Part 54.3 This Part applies to confining in a care facility. 2017, c. 25, Sched. 5, s. 60. Section Amendments with date in force (d/m/y) 2017, c. 25, Sched. 5, s. 60 - not in force Definitions 54.4 In this Part, “licensee” means, (a) a licensee within the meaning of the Long-Term Care Homes Act, 2007, and Note: On a day to be named by proclamation of the Lieutenant Governor, clause (a) of the definition of “licensee” in section 54.4 of the Act is amended by striking out “Long-Term Care Homes Act, 2007” and substituting “Fixing Long-Term Care Act, 2021”. (See: 2021, c. 39, Sched. 2, s. 9 (3)) (b) any other person prescribed by the regulations as a licensee for the purposes of this Part; (“titulaire de permis”) “substitute decision-maker” means a person who is authorized under section 54.6 to give or refuse consent to confining in a care facility on behalf of a person who is incapable with respect to the confining. (“mandataire spécial”) 2017, c. 25, Sched. 5, s. 60. Section Amendments with date in force (d/m/y) 2017, c. 25, Sched. 5, s. 60 - not in force 2021, c. 39, Sched. 2, s. 9 (3) - not in force Consent on Incapable Person’s Behalf Consent on incapable person’s behalf 54.5 (1) If a person is found by an evaluator to be incapable with respect to confining in a care facility, (a) consent to confining may be given or refused on the person’s behalf by his or her substitute decision-maker in accordance with this Act; and (b) the licensee shall take reasonable steps to ensure that the person is not confined in the care facility unless the licensee is of the opinion that the person’s substitute decision-maker has given consent on the person’s behalf in accordance with this Act. 2017, c. 25, Sched. 5, s. 60. Opinion of Board or court governs (2) If a person who is found by an evaluator to be incapable with respect to his or her confining in a care facility is found to be capable with respect to the confining 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. 2017, c. 25, Sched. 5, s. 60. Section Amendments with date in force (d/m/y) 2017, c. 25, Sched. 5, s. 60 - not in force Determining who may give or refuse consent 54.6 Section 20 applies, with necessary modifications, for the purpose of determining who is authorized to give or refuse consent to confining in a care facility on behalf of a person who is incapable with respect to the confining. 2017, c. 25, Sched. 5, s. 60. Section Amendments with date in force (d/m/y) 2017, c. 25, Sched. 5, s. 60 - not in force Principles for giving or refusing consent 54.7 (1) A person who gives or refuses consent on an incapable person’s behalf to his or her confining in 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. 2017, c. 25, Sched. 5, s. 60. Best interests (2) In deciding what the incapable person’s best interests are, the person who gives or refuses consent on the incapable person’s behalf shall take into consideration, (a) the values and beliefs that the person knows the incapable person held when capable and believes that the incapable person would still act on if capable; (b) any wishes expressed by the incapable person with respect to confining in a care facility that are not required to be followed under paragraph 1 of subsection (1); and (c) the following factors: (i) whether confining in the care facility is likely to, (A) improve the quality of the incapable person’s life, (B) prevent the quality of the incapable person’s life from deteriorating, or (C) reduce the extent to which, or the rate at which, the quality of the incapable person’s life is likely to deteriorate, (ii) whether the quality of the incapable person’s life is likely to improve, remain the same or deteriorate without confining in the care facility, (iii) whether the benefit the incapable person is expected to obtain from confining in the care facility outweighs the risk of negative consequences to the incapable person, (iv) whether a course of action that is less restrictive than confining in the care facility is available and is appropriate in the circumstances. 2017, c. 25, Sched. 5, s. 60. Confining (3) Subject to paragraph 1 of subsection (1), the person shall not give consent on the incapable person’s behalf to the incapable person’s confining in a care facility, unless the confining is essential to prevent serious bodily harm to the incapable person or to others, or allows the incapable person greater freedom or enjoyment. 2017, c. 25, Sched. 5, s. 60. Withdrawal of consent (4) Authority to consent on an incapable person’s behalf to the person’s confining in a care facility includes authority to withdraw the consent at any time. 2017, c. 25, Sched. 5, s. 60. Section Amendments with date in force (d/m/y) 2017, c. 25, Sched. 5, s. 60 - not in force Information 54.8 (1) Before giving or refusing consent on an incapable person’s behalf to the incapable person’s confining in a care facility, a substitute decision-maker is entitled to receive all the information required in order to make the decision. 2017, c. 25, Sched. 5, s. 60. Conflict (2) Subsection (1) prevails despite anything to the contrary in the Personal Health Information Protection Act, 2004. 2017, c. 25, Sched. 5, s. 60. Section Amendments with date in force (d/m/y) 2017, c. 25, Sched. 5, s. 60 - not in force Ancillary decisions 54.9 (1) Authority to consent on an incapable person’s behalf to the incapable person’s confining in a care facility includes authority to make decisions that are necessary and ancillary to the confining. 2017, c. 25, Sched. 5, s. 60. Collection and disclosure of information (2) A decision concerning the collection, use and disclosure of information relating to the incapable person is a decision that is necessary and ancillary to the confining, if the information is required for the purpose of the confining and is not personal health information within the meaning of the Personal Health Information Protection Act, 2004. 2017, c. 25, Sched. 5, s. 60. Exception (3) Subsection (1) does not authorize the making of a decision concerning the incapable person’s property. 2017, c. 25, Sched. 5, s. 60. Section Amendments with date in force (d/m/y) 2017, c. 25, Sched. 5, s. 60 - not in force Obligation when application is being made Application 54.10 (1) This section applies if, (a) an evaluator finds that a person is incapable with respect to his or her confining in a care facility; (b) before the confining takes place, the licensee is informed that the person who was found to be incapable, or a person acting on the person’s behalf, 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 54.14 (2). 2017, c. 25, Sched. 5, s. 60. Same (2) This section also applies if, (a) an evaluator finds that a person is incapable with respect to his or her confining in a care facility; (b) before the confining takes place, the licensee is informed that, (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 confining on his or her behalf, or (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 confining on his or her behalf; and (c) the application to the Board is not prohibited by subsection 54.15 (3). 2017, c. 25, Sched. 5, s. 60. Same (3) This section also applies if, (a) an evaluator finds that a person is incapable with respect to his or her confining in a care facility; (b) consent to the incapable person’s confining in a care facility is given on the person’s behalf by his or her substitute decision-maker; and (c) before the confining takes place, the licensee is informed that the incapable person, or a person acting on the incapable person’s behalf, intends to apply, or has applied, to the Board for a determination as to whether the substitute decision-maker complied with section 54.7. 2017, c. 25, Sched. 5, s. 60. Shall not confine (4) In the circumstances described in subsections (1), (2) and (3), the licensee shall take reasonable steps to ensure that the person is not confined in the care facility, (a) until 48 hours have elapsed since the licensee 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 licensee 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 licensee that he or she intends to appeal the Board’s decision, (i) until the period for commencing the appeal has elapsed without an appeal being commenced, or (ii) until the appeal of the Board’s decision has been finally disposed of. 2017, c. 25, Sched. 5, s. 60. Where confining has taken place (5) For greater certainty, subsection (4) does not apply if the licensee is not informed of a matter described in clause (1) (b), (2) (b) or (3) (c) until after the confining has taken place. 2017, c. 25, Sched. 5, s. 60. Non-application (6) This section does not apply if the licensee is of the opinion that the incapable person requires confining under the common law duty of a caregiver to confine a person when immediate action is necessary to prevent serious bodily harm to the person or to others. 2017, c. 25, Sched. 5, s. 60. Section Amendments with date in force (d/m/y) 2017, c. 25, Sched. 5, s. 60 - not in force Incapacity information 54.11 An evaluator shall, in the circumstances and manner specified in guidelines established by the governing body of the evaluator’s profession, provide to persons found by the evaluator to be incapable with respect to confining in a care facility such information about the consequences of the findings as is specified in the guidelines. 2017, c. 25, Sched. 5, s. 60. Section Amendments with date in force (d/m/y) 2017, c. 25, Sched. 5, s. 60 - not in force Apparently valid consent to confining 54.12 (1) If a licensee confines a person in a care facility with a consent that the licensee believes, on reasonable grounds and in good faith, to be sufficient for the purpose of this Act, the licensee is not liable for confining the person without consent. 2017, c. 25, Sched. 5, s. 60. Apparently valid refusal of confining (2) If a licensee does not confine a person in a care facility because of a refusal that the licensee believes, on reasonable grounds and in good faith, to be sufficient for the purpose of this Act, the licensee is not liable for failing to confine the person. 2017, c. 25, Sched. 5, s. 60. Reliance on assertion (3) If a person who gives or refuses consent to confining in a care facility on an incapable person’s behalf asserts that he or she, (a) is a person described in subsection 20 (1), as it applies for the purpose of section 54.6, or an attorney for personal care described in clause 54.14 (2) (b); (b) meets the requirement of clause 20 (2) (b) or (c), as it applies for the purpose of section 54.6; or (c) holds the opinions required under subsection 20 (4), as it applies for the purpose of section 54.6; the licensee is entitled to rely on the accuracy of the assertion, unless it is not reasonable to do so in the circumstances. 2017, c. 25, Sched. 5, s. 60. Section Amendments with date in force (d/m/y) 2017, c. 25, Sched. 5, s. 60 - not in force Person making decision on another’s behalf 54.13 A person who gives or refuses consent on another person’s behalf to the other person’s confining in a care facility, acting in good faith and in accordance with this Act, is not liable for giving or refusing consent. 2017, c. 25, Sched. 5, s. 60. Section Amendments with date in force (d/m/y) 2017, c. 25, Sched. 5, s. 60 - not in force Applications to Board Application for review of finding of incapacity 54.14 (1) A person, or any person acting on that person’s behalf, may apply to the Board for a review of an evaluator’s finding that the person is incapable with respect to the person’s confining in a care facility. 2017, c. 25, Sched. 5, s. 60. Exception (2) Subsection (1) does not apply to, (a) a person who has a guardian of the person, if the guardian has authority to give or refuse consent to the person’s confining in a care facility; or (b) a person who has an attorney for personal care, if the power of attorney contains a provision waiving the person’s right to apply for the review and the provision is effective under subsection 50 (1) of the Substitute Decisions Act, 1992. 2017, c. 25, Sched. 5, s. 60. Parties (3) The parties to the application are: 1. The person found to be incapable. 2. The evaluator. 3. The licensee. 4. Any other person whom the Board specifies. 2017, c. 25, Sched. 5, s. 60. Subss. 32 (4) to (7) apply (4) Subsections 32 (4) to (7) apply, with necessary modifications, to an application under this section. 2017, c. 25, Sched. 5, s. 60. Section Amendments with date in force (d/m/y) 2017, c. 25, Sched. 5, s. 60 - not in force Application for appointment of representative 54.15 (1) A person who is 16 years old or older and who is incapable with respect to his or her confining in a care facility may apply to the Board for appointment of a representative to give or refuse consent on his or her behalf. 2017, c. 25, Sched. 5, s. 60. Application by proposed representative (2) A person who is 16 years old or older may apply to the Board to be appointed as the representative of a person who is incapable with respect to his or her confining in a care facility, in order to give or refuse consent on behalf of the incapable person. 2017, c. 25, Sched. 5, s. 60. Exception (3) Subsections (1) and (2) do not apply if the incapable person has a guardian of the person who has authority to give or refuse consent to the person’s confining in a care facility, or an attorney for personal care under a power of attorney conferring that authority. 2017, c. 25, Sched. 5, s. 60. Parties (4) The parties to the application are: 1. The incapable person. 2. The proposed representative named in the application. 3. Every person who is described in paragraph 4, 5, 6 or 7 of subsection 20 (1), as it applies for the purpose of section 54.6. 4. The licensee. 5. Any other person whom the Board specifies. 2017, c. 25, Sched. 5, s. 60. Appointment (5) In an appointment under this section, the Board may authorize the representative to give or refuse consent on the incapable person’s behalf to his or her confining in a care facility. 2017, c. 25, Sched. 5, s. 60. Subss. 33 (6) to (8) apply (6) Subsections 33 (6) to (8) apply, with necessary modifications, to an appointment under this section. 2017, c. 25, Sched. 5, s. 60. Section Amendments with date in force (d/m/y) 2017, c. 25, Sched. 5, s. 60 - not in force Application for directions 54.16 (1) A substitute decision-maker or the licensee may apply to the Board for directions if the incapable person expressed a wish with respect to the incapable person’s confining in the care facility, but, (a) the wish is not clear; (b) it is not clear whether the wish is applicable to the circumstances; (c) it is not clear whether the wish was expressed while the incapable person was capable; or (d) it is not clear whether the wish was expressed after the incapable person attained 16 years of age. 2017, c. 25, Sched. 5, s. 60. Notice to substitute decision-maker (2) A licensee who intends to apply for directions shall inform the substitute decision-maker of the intention before applying. 2017, c. 25, Sched. 5, s. 60. Parties (3) The parties to the application are: 1. The substitute decision-maker. 2. The incapable person. 3. The licensee. 4. Any other person whom the Board specifies. 2017, c. 25, Sched. 5, s. 60. Directions (4) The Board may give directions and, in doing so, shall apply section 54.7. 2017, c. 25, Sched. 5, s. 60. Section Amendments with date in force (d/m/y) 2017, c. 25, Sched. 5, s. 60 - not in force Application to depart from wishes 54.17 (1) If a substitute decision-maker is required by paragraph 1 of subsection 54.7 (1) to refuse consent to the incapable person’s confining in a care facility because of a wish expressed by the incapable person while capable and after attaining 16 years of age, (a) the substitute decision-maker may apply to the Board for permission to consent to the confining despite the wish; or (b) the licensee may apply to the Board to obtain permission for the substitute decision-maker to consent to the confining despite the wish. 2017, c. 25, Sched. 5, s. 60. Notice to substitute decision-maker (2) If the licensee intends to apply under subsection (1), the licensee shall inform the substitute decision-maker of the licensee’s intention before applying. 2017, c. 25, Sched. 5, s. 60. Parties (3) The parties to the application are: 1. The substitute decision-maker. 2. The incapable person. 3. The licensee. 4. Any other person whom the Board specifies. 2017, c. 25, Sched. 5, s. 60. Criteria for permission (4) The Board may give the substitute decision-maker permission to consent to the confining despite the wish if it is satisfied that the incapable person, if capable, would probably give consent because the likely result of the confining is significantly better than would have been anticipated in comparable circumstances at the time the wish was expressed. 2017, c. 25, Sched. 5, s. 60. Section Amendments with date in force (d/m/y) 2017, c. 25, Sched. 5, s. 60 - not in force Application with respect to confining 54.18 (1) If consent to a person’s confining in a care facility is given on an incapable person’s behalf by a substitute decision-maker, the person, or any other person acting on the incapable person’s behalf, may apply to the Board for a determination as to whether the substitute decision-maker complied with section 54.7. 2017, c. 25, Sched. 5, s. 60. Parties (2) The parties to the application are: 1. The substitute decision-maker. 2. The incapable person. 3. The licensee. 4. Any other person whom the Board specifies. 2017, c. 25, Sched. 5, s. 60. Restriction on repeated applications (3) If the decision to consent to the confining of the person is confirmed on the final disposition of an application under this section, the person or another person acting on that person’s behalf shall not make a new application for a review of the decision to consent within six months after the final disposition of the earlier application, unless the Board gives leave in advance. 2017, c. 25, Sched. 5, s. 60. Restriction where other applications (4) A person shall not make an application under this section for a review of a decision to consent to the confining within six months after any of the following, unless the Board gives leave in advance: 1. A final disposition of an application under section 54.16 if the result of the final disposition was that directions were given with respect to a wish, applicable to the circumstances, expressed by the person while capable and after attaining 16 years of age. 2. A final disposition of an application under section 54.17 if the result of the final disposition was that permission was given to the substitute decision-maker to consent to the confining despite a wish expressed by the person while capable and after attaining 16 years of age. 3. A final disposition of an application under section 54.18 if the result of the final disposition was that directions were given with respect to the consent to the confining. 2017, c. 25, Sched. 5, s. 60. Same (5) The Board may give leave for the new application to be made under subsection (3) or (4) if it is satisfied that there has been a material change in circumstances that justifies reconsideration of the decision to consent to the confining. 2017, c. 25, Sched. 5, s. 60. Power of Board (6) In determining whether the substitute decision-maker complied with section 54.7, the Board may substitute its opinion for that of the substitute decision-maker. 2017, c. 25, Sched. 5, s. 60. Directions (7) If the Board determines that the substitute decision-maker did not comply with section 54.7, it may give the substitute decision-maker directions and, in doing so, shall apply section 54.7. 2017, c. 25, Sched. 5, s. 60. Time for compliance (8) The Board shall specify the time within which its directions must be complied with. 2017, c. 25, Sched. 5, s. 60. Deemed not authorized (9) If the substitute decision-maker does not comply with the Board’s directions within the time specified by the Board, the substitute decision-maker shall be deemed not to meet the requirements of subsection 20 (2), as it applies for the purpose of section 54.6. 2017, c. 25, Sched. 5, s. 60. Subsequent substitute decision-maker (10) If, under subsection (9), the substitute decision-maker is deemed not to meet the requirements of subsection 20 (2), any subsequent substitute decision-maker shall, subject to subsections (11) and (12), comply with the directions given by the Board on the application within the time specified by the Board. 2017, c. 25, Sched. 5, s. 60. Application for directions (11) If a subsequent substitute decision-maker knows of a wish expressed by the incapable person with respect to confining in a care facility, the substitute decision-maker may, with leave of the Board, apply to the Board for directions under section 54.16. 2017, c. 25, Sched. 5, s. 60. Inconsistent directions (12) Directions given by the Board under section 54.16 on a subsequent substitute decision-maker’s application brought with leave under subsection (11) prevail over inconsistent directions given under subsection (7) to the extent of the inconsistency. 2017, c. 25, Sched. 5, s. 60. P.G.T. (13) If the substitute decision-maker who is given directions is the Public Guardian and Trustee, the Public Guardian and Trustee is required to comply with the directions, and subsection (9) does not apply to him or her. 2017, c. 25, Sched. 5, s. 60. Section Amendments with date in force (d/m/y) 2017, c. 25, Sched. 5, s. 60 - not in force Application by licensee to determine compliance with s. 54.7 54.19 (1) If consent to confining in a care facility is given or refused on an incapable person’s behalf by his or her substitute decision-maker, and if the licensee is of the opinion that the substitute decision-maker did not comply with section 54.7, the licensee may apply to the Board for a determination as to whether the substitute decision-maker complied with section 54.7. 2017, c. 25, Sched. 5, s. 60. Parties (2) The parties to the application are: 1. The licensee. 2. The incapable person. 3. The substitute decision-maker. 4. Any other person whom the Board specifies. 2017, c. 25, Sched. 5, s. 60. Power of Board (3) In determining whether the substitute decision-maker complied with section 54.7, the Board may substitute its opinion for that of the substitute decision-maker. 2017, c. 25, Sched. 5, s. 60. Directions (4) If the Board determines that the substitute decision-maker did not comply with section 54.7, it may give the substitute decision-maker directions and, in doing so, shall apply section 54.7. 2017, c. 25, Sched. 5, s. 60. Time for compliance (5) The Board shall specify the time within which its directions must be complied with. 2017, c. 25, Sched. 5, s. 60. Deemed not authorized (6) If the substitute decision-maker does not comply with the Board’s directions within the time specified by the Board, the substitute decision-maker shall be deemed not to meet the requirements of subsection 20 (2), as it applies for the purpose of section 54.6. 2017, c. 25, Sched. 5, s. 60. Subsequent substitute decision-maker (7) If, under subsection (6), the substitute decision-maker is deemed not to meet the requirements of subsection 20 (2), any subsequent substitute decision-maker shall, subject to subsections (8) and (9), comply with the directions given by the Board on the application within the time specified by the Board. 2017, c. 25, Sched. 5, s. 60. Application for directions (8) If a subsequent substitute decision-maker knows of a wish expressed by the incapable person with respect to the confining in a care facility, the substitute decision-maker may, with leave of the Board, apply to the Board for directions under section 54.16. 2017, c. 25, Sched. 5, s. 60. Inconsistent directions (9) Directions given by the Board under section 54.16 on a subsequent substitute decision-maker’s application brought with leave under subsection (8) prevail over inconsistent directions given under subsection (4) to the extent of the inconsistency. 2017, c. 25, Sched. 5, s. 60. P.G.T. (10) If the substitute decision-maker who is given directions is the Public Guardian and Trustee, the Public Guardian and Trustee is required to comply with the directions, and subsection (6) does not apply to him or her. 2017, c. 25, Sched. 5, s. 60. Section Amendments with date in force (d/m/y) 2017, c. 25, Sched. 5, s. 60 - not in force Deemed application concerning capacity 54.20 An application to the Board under section 54.15, 54.16, 54.17, 54.18 or 54.19 shall be deemed to include an application to the Board under section 54.14 with respect to the person’s capacity to consent to his or her confining in a care facility unless the person’s capacity to consent to such confining has been determined by the Board within the previous six months. 2017, c. 25, Sched. 5, s. 60. Section Amendments with date in force (d/m/y) 2017, c. 25, Sched. 5, s. 60 - not in force Transition, applications to the Board under Part III.1 54.21 Despite subsection 75 (2), the hearing of an application made under this Part before the day on which this section has been in force for eight months shall begin within 14 days after the day the Board receives the application, unless the parties agree to a postponement. 2017, c. 25, Sched. 5, s. 60. Section Amendments with date in force (d/m/y) 2017, c. 25, Sched. 5, s. 60 - not in force PART IV   PERSONAL ASSISTANCE SERVICES General