jswizzle3737/ontario_laws_and_regs huggingface dataset:
3 (1) In this section, “excluded act” means, (a) anything described in clause (b) or (g) of the definition of “treatment” in subsection 2 (1), or (b) anything described in clause (h) of the definition of “treatment” in subsection 2 (1) and prescribed by the regulations as an excluded act.  1996, c. 2, Sched. A, s. 3 (1). Excluded act considered treatment (2) If a health practitioner decides to proceed as if an excluded act were a treatment for the purpose of this Act, this Act and the regulations apply as if the excluded act were a treatment within the meaning of this Act.  1996, c. 2, Sched. A, s. 3 (2).
4 (1) A person is capable with respect to a treatment, admission to a care facility or a personal assistance service if the person is able to understand the information that is relevant to making a decision about the treatment, admission or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.  1996, c. 2, Sched. A, s. 4 (1). Presumption of capacity (2) A person is presumed to be capable with respect to treatment, admission to a care facility and personal assistance services.  1996, c. 2, Sched. A, s. 4 (2). Exception (3) A person is entitled to rely on the presumption of capacity with respect to another person unless he or she has reasonable grounds to believe that the other person is incapable with respect to the treatment, the admission or the personal assistance service, as the case may be.  1996, c. 2, Sched. A, s. 4 (3). Note: On a day to be named by proclamation of the Lieutenant Governor, section 4 of the Act is repealed and the following substituted: (See: 2017, c. 25, Sched. 5, s. 56) Capacity 4 (1) A person is capable with respect to a treatment, admission to or confining in a care facility or a personal assistance service if the person is able to understand the information that is relevant to making a decision about the treatment, admission, confining or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. 2017, c. 25, Sched. 5, s. 56. Presumption of capacity (2) A person is presumed to be capable with respect to treatment, admission to or confining in a care facility and personal assistance services. 2017, c. 25, Sched. 5, s. 56. Exception (3) A person is entitled to rely on the presumption of capacity with respect to another person unless he or she has reasonable grounds to believe that the other person is incapable with respect to the treatment, the admission, the confining or the personal assistance service, as the case may be. 2017, c. 25, Sched. 5, s. 56. Section Amendments with date in force (d/m/y) 2017, c. 25, Sched. 5, s. 56 - not in force
5 (1) A person may, while capable, express wishes with respect to treatment, admission to a care facility or a personal assistance service.  1996, c. 2, Sched. A, s. 5 (1). Note: On a day to be named by proclamation of the Lieutenant Governor, subsection 5 (1) of the Act is amended by striking out “admission to a care facility” and substituting “admission to or confining in a care facility”. (See: 2017, c. 25, Sched. 5, s. 57) Manner of expression (2) Wishes may be expressed in a power of attorney, in a form prescribed by the regulations, in any other written form, orally or in any other manner.  1996, c. 2, Sched. A, s. 5 (2). Later wishes prevail (3) Later wishes expressed while capable prevail over earlier wishes.  1996, c. 2, Sched. A, s. 5 (3). Section Amendments with date in force (d/m/y) 2017, c. 25, Sched. 5, s. 57 - not in force
6 This Act does not affect the law relating to giving or refusing consent on another person’s behalf to any of the following procedures: 1. A procedure whose primary purpose is research. 2. Sterilization that is not medically necessary for the protection of the person’s health. 3. The removal of regenerative or non-regenerative tissue for implantation in another person’s body.  1996, c. 2, Sched. A, s. 6.
7 This Act does not affect the common law duty of a caregiver to restrain or confine a person when immediate action is necessary to prevent serious bodily harm to the person or to others.  1996, c. 2, Sched. A, s. 7. PART II   TREATMENT General
8 (1) Subject to section 3, this Part applies to treatment.  1996, c. 2, Sched. A, s. 8 (1). Law not affected (2) Subject to section 3, this Part does not affect the law relating to giving or refusing consent to anything not included in the definition of “treatment” in subsection 2 (1).  1996, c. 2, Sched. A, s. 8 (2).
9 In this Part, “substitute decision-maker” means a person who is authorized under section 20 to give or refuse consent to a treatment on behalf of a person who is incapable with respect to the treatment.  1996, c. 2, Sched. A, s. 9. Consent to Treatment
10 (1) A health practitioner who proposes a treatment for a person shall not administer the treatment, and shall take reasonable steps to ensure that it is not administered, unless, (a) he or she is of the opinion that the person is capable with respect to the treatment, and the person has given consent; or (b) he or she is of the opinion that the person is incapable with respect to the treatment, and the person’s substitute decision-maker has given consent on the person’s behalf in accordance with this Act.  1996, c. 2, Sched. A, s. 10 (1). Opinion of Board or court governs (2) If the health practitioner is of the opinion that the person is incapable with respect to the treatment, but the person is found to be capable with respect to the treatment by the Board on an application for review of the health practitioner’s finding, or by a court on an appeal of the Board’s decision, the health practitioner shall not administer the treatment, and shall take reasonable steps to ensure that it is not administered, unless the person has given consent.  1996, c. 2, Sched. A, s. 10 (2).
11 (1) The following are the elements required for consent to treatment: 1. The consent must relate to the treatment. 2. The consent must be informed. 3. The consent must be given voluntarily. 4. The consent must not be obtained through misrepresentation or fraud.  1996, c. 2, Sched. A, s. 11 (1). Informed consent (2) A consent to treatment is informed if, before giving it, (a) the person received the information about the matters set out in subsection (3) that a reasonable person in the same circumstances would require in order to make a decision about the treatment; and (b) the person received responses to his or her requests for additional information about those matters.  1996, c. 2, Sched. A, s. 11 (2). Same (3) The matters referred to in subsection (2) are: 1. The nature of the treatment. 2. The expected benefits of the treatment. 3. The material risks of the treatment. 4. The material side effects of the treatment. 5. Alternative courses of action. 6. The likely consequences of not having the treatment.  1996, c. 2, Sched. A, s. 11 (3). Express or implied (4) Consent to treatment may be express or implied.  1996, c. 2, Sched. A, s. 11 (4).
12 Unless it is not reasonable to do so in the circumstances, a health practitioner is entitled to presume that consent to a treatment includes, (a) consent to variations or adjustments in the treatment, if the nature, expected benefits, material risks and material side effects of the changed treatment are not significantly different from the nature, expected benefits, material risks and material side effects of the original treatment; and (b) consent to the continuation of the same treatment in a different setting, if there is no significant change in the expected benefits, material risks or material side effects of the treatment as a result of the change in the setting in which it is administered.  1996, c. 2, Sched. A, s. 12.
13 If a plan of treatment is to be proposed for a person, one health practitioner may, on behalf of all the health practitioners involved in the plan of treatment, (a) propose the plan of treatment; (b) determine the person’s capacity with respect to the treatments referred to in the plan of treatment; and (c) obtain a consent or refusal of consent in accordance with this Act, (i) from the person, concerning the treatments with respect to which the person is found to be capable, and (ii) from the person’s substitute decision-maker, concerning the treatments with respect to which the person is found to be incapable.  1996, c. 2, Sched. A, s. 13.
14 A consent that has been given by or on behalf of the person for whom the treatment was proposed may be withdrawn at any time, (a) by the person, if the person is capable with respect to the treatment at the time of the withdrawal; (b) by the person’s substitute decision-maker, if the person is incapable with respect to the treatment at the time of the withdrawal.  1996, c. 2, Sched. A, s. 14. Capacity
15 (1) A person may be incapable with respect to some treatments and capable with respect to others.  1996, c. 2, Sched. A, s. 15 (1). Capacity depends on time (2) A person may be incapable with respect to a treatment at one time and capable at another.  1996, c. 2, Sched. A, s. 15 (2).
16 If, after consent to a treatment is given or refused on a person’s behalf in accordance with this Act, the person becomes capable with respect to the treatment in the opinion of the health practitioner, the person’s own decision to give or refuse consent to the treatment governs.  1996, c. 2, Sched. A, s. 16.
17 A health practitioner shall, in the circumstances and manner specified in guidelines established by the governing body of the health practitioner’s profession, provide to persons found by the health practitioner to be incapable with respect to treatment such information about the consequences of the findings as is specified in the guidelines.  1996, c. 2, Sched. A, s. 17.
18 (1) This section applies if, (a) a health practitioner proposes a treatment for a person and finds that the person is incapable with respect to the treatment; (b) before the treatment is begun, the health practitioner is informed that the person 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 32 (2).  1996, c. 2, Sched. A, s. 18 (1). Same (2) This section also applies if, (a) a health practitioner proposes a treatment for a person and finds that the person is incapable with respect to the treatment; (b) before the treatment is begun, the health practitioner 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 treatment 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 treatment on his or her behalf; and (c) the application to the Board is not prohibited by subsection 33 (3).  1996, c. 2, Sched. A, s. 18 (2). Same (3) In the circumstances described in subsections (1) and (2), the health practitioner shall not begin the treatment, and shall take reasonable steps to ensure that the treatment is not begun, (a) until 48 hours have elapsed since the health practitioner 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 health practitioner 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 health practitioner 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.  1996, c. 2, Sched. A, s. 18 (3). Emergency (4) This section does not apply if the health practitioner is of the opinion that there is an emergency within the meaning of subsection 25 (1).  1996, c. 2, Sched. A, s. 18 (4).
19 (1) If an appeal is taken from a Board or court decision that has the effect of authorizing a person to consent to a treatment, the treatment may be administered before the final disposition of the appeal, despite section 18, if the court to which the appeal is taken so orders and the consent is given.  1996, c. 2, Sched. A, s. 19 (1). Criteria for order (2) The court may make the order if it is satisfied, (a) that, (i) the treatment will or is likely to improve substantially the condition of the person to whom it is to be administered, and the person’s condition will not or is not likely to improve without the treatment, or (ii) the person’s condition will or is likely to deteriorate substantially, or to deteriorate rapidly, without the treatment, and the treatment will or is likely to prevent the deterioration or to reduce substantially its extent or its rate; (b) that the benefit the person is expected to obtain from the treatment outweighs the risk of harm to him or her; (c) that the treatment is the least restrictive and least intrusive treatment that meets the requirements of clauses (a) and (b); and (d) that the person’s condition makes it necessary to administer the treatment before the final disposition of the appeal.  1996, c. 2, Sched. A, s. 19 (2). Consent on Incapable Person’s Behalf Consent
21 (1) A person who gives or refuses consent to a treatment on an incapable person’s behalf 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.  1996, c. 2, Sched. A, s. 21 (1). Best interests (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 the treatment that are not required to be followed under paragraph 1 of subsection (1); and (c) the following factors: 1. Whether the treatment is likely to, i. improve the incapable person’s condition or well-being, ii. prevent the incapable person’s condition or well-being from deteriorating, or iii. reduce the extent to which, or the rate at which, the incapable person’s condition or well-being is likely to deteriorate. 2. Whether the incapable person’s condition or well-being is likely to improve, remain the same or deteriorate without the treatment. 3. Whether the benefit the incapable person is expected to obtain from the treatment outweighs the risk of harm to him or her. 4. Whether a less restrictive or less intrusive treatment would be as beneficial as the treatment that is proposed.  1996, c. 2, Sched. A, s. 21 (2).
22 (1) Before giving or refusing consent to a treatment on an incapable person’s behalf, a substitute decision-maker is entitled to receive all the information required for an informed consent as described in subsection 11 (2).  1996, c. 2, Sched. A, s. 22. Conflict (2) Subsection (1) prevails despite anything to the contrary in the Personal Health Information Protection Act, 2004.  2004, c. 3, Sched. A, s. 84 (7). Section Amendments with date in force (d/m/y) 2004, c. 3, Sched. A, s. 84 (7) - 1/11/2004
23 Authority to consent to a treatment on an incapable person’s behalf includes authority to consent to another treatment that is necessary and ancillary to the treatment, even if the incapable person is capable with respect to the necessary and ancillary treatment.  1996, c. 2, Sched. A, s. 23.
24 (1) Subject to subsection (2), a substitute decision-maker who consents to a treatment on an incapable person’s behalf may consent to the incapable person’s admission to a hospital or psychiatric facility or to another health facility prescribed by the regulations, for the purpose of the treatment.  1996, c. 2, Sched. A, s. 24 (1). Objection, psychiatric facility (2) If the incapable person is 16 years old or older and objects to being admitted to a psychiatric facility for treatment of a mental disorder, consent to his or her admission may be given only by, (a) his or her guardian of the person, if the guardian has authority to consent to the admission; or (b) his or her attorney for personal care, if the power of attorney contains a provision authorizing the attorney to use force that is necessary and reasonable in the circumstances to admit the incapable person to the psychiatric facility and the provision is effective under subsection 50 (1) of the Substitute Decisions Act, 1992.  1996, c. 2, Sched. A, s. 24 (2). Emergency Treatment Emergency treatment
26 A health practitioner shall not administer a treatment under section 25 if the health practitioner has reasonable grounds to believe that the person, while capable and after attaining 16 years of age, expressed a wish applicable to the circumstances to refuse consent to the treatment.  1996, c. 2, Sched. A, s. 26.
27 If consent to a treatment is refused on an incapable person’s behalf by his or her substitute decision-maker, the treatment may be administered despite the refusal if, in the opinion of the health practitioner proposing the treatment, (a) there is an emergency; and (b) the substitute decision-maker did not comply with section 21.  1996, c. 2, Sched. A, s. 27.
28 The authority to administer a treatment to a person under section 25 or 27 includes authority to have the person admitted to a hospital or psychiatric facility for the purpose of the treatment, unless the person objects and the treatment is primarily treatment of a mental disorder.  1996, c. 2, Sched. A, s. 28. Protection from Liability Protection from liability
29 (1) If a treatment is administered to a person with a consent that a health practitioner believes, on reasonable grounds and in good faith, to be sufficient for the purpose of this Act, the health practitioner is not liable for administering the treatment without consent.  1996, c. 2, Sched. A, s. 29 (1). Apparently valid refusal of treatment (2) If a treatment is not administered to a person because of a refusal that a health practitioner believes, on reasonable grounds and in good faith, to be sufficient for the purpose of this Act, the health practitioner is not liable for failing to administer the treatment.  1996, c. 2, Sched. A, s. 29 (2). Apparently valid consent to withholding or withdrawal (3) If a treatment is withheld or withdrawn in accordance with a plan of treatment and with a consent to the plan of treatment that a health practitioner believes, on reasonable grounds and in good faith, to be sufficient for the purpose of this Act, the health practitioner is not liable for withholding or withdrawing the treatment.  1996, c. 2, Sched. A, s. 29 (3). Emergency: treatment administered (4) A health practitioner who, in good faith, administers a treatment to a person under section 25 or 27 is not liable for administering the treatment without consent.  1996, c. 2, Sched. A, s. 29 (4). Emergency: treatment not administered (5) A health practitioner who, in good faith, refrains from administering a treatment in accordance with section 26 is not liable for failing to administer the treatment.  1996, c. 2, Sched. A, s. 29 (5). Reliance on assertion (6) If a person who gives or refuses consent to a treatment on an incapable person’s behalf asserts that he or she, (a) is a person described in subsection 20 (1) or clause 24 (2) (a) or (b) or an attorney for personal care described in clause 32 (2) (b); (b) meets the requirement of clause 20 (2) (b) or (c); or (c) holds the opinions required under subsection 20 (4), a health practitioner is entitled to rely on the accuracy of the assertion, unless it is not reasonable to do so in the circumstances.  1996, c. 2, Sched. A, s. 29 (6).
30 A person who gives or refuses consent to a treatment on another person’s behalf, acting in good faith and in accordance with this Act, is not liable for giving or refusing consent.  1996, c. 2, Sched. A, s. 30.
31 (1) Sections 29 and 30, except subsection 29 (4), apply, with necessary modifications, to admission of the incapable person to a hospital, psychiatric facility or other health facility referred to in section 24, for the purpose of treatment.  1996, c. 2, Sched. A, s. 31 (1). Same (2) A health practitioner who, in good faith, has a person admitted to a hospital or psychiatric facility under section 28 is not liable for having the person admitted without consent.  1996, c. 2, Sched. A, s. 31 (2). Applications to Board
32 (1) A person who is the subject of a treatment may apply to the Board for a review of a health practitioner’s finding that he or she is incapable with respect to the treatment.  1996, c. 2, Sched. A, s. 32 (1). 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 treatment; (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.  1996, c. 2, Sched. A, s. 32 (2). Parties (3) The parties to the application are: 1. The person applying for the review. 2. The health practitioner. 3. Any other person whom the Board specifies.  1996, c. 2, Sched. A, s. 32 (3). Powers of Board (4) The Board may confirm the health practitioner’s finding or may determine that the person is capable with respect to the treatment, and in doing so may substitute its opinion for that of the health practitioner.  1996, c. 2, Sched. A, s. 32 (4). Restriction on repeated applications (5) If a health practitioner’s finding that a person is incapable with respect to a treatment is confirmed on the final disposition of an application under this section, the person shall not make a new application for a review of a finding of incapacity with respect to the same or similar treatment within six months after the final disposition of the earlier application, unless the Board gives leave in advance.  1996, c. 2, Sched. A, s. 32 (5). Same (6) The Board may give leave for the new application to be made if it is satisfied that there has been a material change in circumstances that justifies reconsideration of the person’s capacity.  1996, c. 2, Sched. A, s. 32 (6). Decision effective while application for leave pending (7) The Board’s decision under subsection (5) remains in effect pending an application for leave under subsection (6).  2000, c. 9, s. 32. Section Amendments with date in force (d/m/y) 2000, c. 9, s. 32
- 1/12/2000
35 (1) A substitute decision-maker or a health practitioner who proposed a treatment may apply to the Board for directions if the incapable person expressed a wish with respect to the treatment, 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.  1996, c. 2, Sched. A, s. 35 (1); 2000, c. 9, s. 33 (1). Notice to substitute decision-maker (1.1) A health practitioner who intends to apply for directions shall inform the substitute decision-maker of his or her intention before doing so.  2000, c. 9, s. 33 (2). Parties (2) The parties to the application are: 1. The substitute decision-maker. 2. The incapable person. 3. The health practitioner who proposed the treatment. 4. Any other person whom the Board specifies.  1996, c. 2, Sched. A, s. 35 (2). Directions (3) The Board may give directions and, in doing so, shall apply section 21.  2000, c. 9, s. 33 (3). Section Amendments with date in force (d/m/y) 2000, c. 9, s. 33
- 1/12/2000
36 (1) If a substitute decision-maker is required by paragraph 1 of subsection 21 (1) to refuse consent to a treatment 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 treatment despite the wish; or (b) the health practitioner who proposed the treatment may apply to the Board to obtain permission for the substitute decision-maker to consent to the treatment despite the wish.  2000, c. 9, s. 34 (1). Notice to substitute decision-maker (1.1) A health practitioner who intends to apply under clause (1) (b) shall inform the substitute decision-maker of his or her intention before doing so.  2000, c. 9, s. 34 (2). Parties (2) The parties to the application are: 1. The substitute decision-maker. 2. The incapable person. 3. The health practitioner who proposed the treatment. 4. Any other person whom the Board specifies.  1996, c. 2, Sched. A, s. 36 (2). Criteria for permission (3) The Board may give the substitute decision-maker permission to consent to the treatment despite the wish if it is satisfied that the incapable person, if capable, would probably give consent because the likely result of the treatment is significantly better than would have been anticipated in comparable circumstances at the time the wish was expressed.  1996, c. 2, Sched. A, s. 36 (3). Section Amendments with date in force (d/m/y) 2000, c. 9, s. 34
- 1/12/2000
37 (1) If consent to a treatment is given or refused on an incapable person’s behalf by his or her substitute decision-maker, and if the health practitioner who proposed the treatment is of the opinion that the substitute decision-maker did not comply with section 21, the health practitioner may apply to the Board for a determination as to whether the substitute decision-maker complied with section 21.  1996, c. 2, Sched. A, s. 37 (1). Parties (2) The parties to the application are: 1. The health practitioner who proposed the treatment. 2. The incapable person. 3. The substitute decision-maker. 4. Any other person whom the Board specifies.  1996, c. 2, Sched. A, s. 37 (2). Power of Board (3) In determining whether the substitute decision-maker complied with section 21, the Board may substitute its opinion for that of the substitute decision-maker.  1996, c. 2, Sched. A, s. 37 (3). Directions (4) If the Board determines that the substitute decision-maker did not comply with section 21, it may give him or her directions and, in doing so, shall apply section 21.  1996, c. 2, Sched. A, s. 37 (4). Time for compliance (5) The Board shall specify the time within which its directions must be complied with.  1996, c. 2, Sched. A, s. 37 (5). Deemed not authorized (6) If the substitute decision-maker does not comply with the Board’s directions within the time specified by the Board, he or she shall be deemed not to meet the requirements of subsection 20 (2).  1996, c. 2, Sched. A, s. 37 (6). Subsequent substitute decision-maker (6.1) 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 (6.2) and (6.3), comply with the directions given by the Board on the application within the time specified by the Board.  2000, c. 9, s. 35. Application for directions (6.2) If a subsequent substitute decision-maker knows of a wish expressed by the incapable person with respect to the treatment, the substitute decision-maker may, with leave of the Board, apply to the Board for directions under section 35.  2000, c. 9, s. 35. Inconsistent directions (6.3) Directions given by the Board under section 35 on a subsequent substitute decision-maker’s application brought with leave under subsection (6.2) prevail over inconsistent directions given under subsection (4) to the extent of the inconsistency.  2000, c. 9, s. 35. P.G.T. (7) If the substitute decision-maker who is given directions is the Public Guardian and Trustee, he or she is required to comply with the directions, and subsection (6) does not apply to him or her.  1996, c. 2, Sched. A, s. 37 (7). Section Amendments with date in force (d/m/y) 2000, c. 9, s. 35
- 1/12/2000
37.1 An application to the Board under section 33, 34, 35, 36 or 37 shall be deemed to include an application to the Board under section 32 with respect to the person’s capacity to consent to treatment proposed by a health practitioner unless the person’s capacity to consent to such treatment has been determined by the Board within the previous six months.  2000, c. 9, s. 36. Section Amendments with date in force (d/m/y) 2000, c. 9, s. 36
- 1/12/2000 PART III   ADMISSION TO CARE FACILITIES General
38 This Part applies to admission to a care facility.  1996, c. 2, Sched. A, s. 38. Section Amendments with date in force (d/m/y) 2007, c. 8, s. 207 (2)
- 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
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; (“crise”) Note: On a day to be named by proclamation of the Lieutenant Governor, the definition of “crisis” in section 39 of the Act is repealed and the following substituted: (See: 2017, c. 25, Sched. 5, s. 58) “crisis” means, (a) a crisis relating to the condition or circumstances of the person who is to be admitted to the care facility, and (b) a situation prescribed by the regulations as a crisis; (“crise”) “substitute decision-maker” means a person who is authorized under section 41 to give or refuse consent to admission to a care facility on behalf of a person who is incapable with respect to the admission. (“mandataire spécial”)  1996, c. 2, Sched. A, s. 39. Section Amendments with date in force (d/m/y) 2007, c. 8, s. 207 (3, 4) - 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; 2017, c. 25, Sched. 5, s. 58 - not in force Consent on Incapable Person’s Behalf
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.  1996, c. 2, Sched. A, s. 40 (1). Note: On a day to be named by proclamation of the Lieutenant Governor, subsection 40 (1) of the Act is repealed and the following substituted: (See: 2017, c. 25, Sched. 5, s. 59) Consent on incapable person’s behalf (1) If a person is found by an evaluator to be incapable with respect to the admission, (a) consent 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 person responsible for authorizing admissions to the care facility shall take reasonable steps to ensure that the person’s admission is not authorized unless the person responsible for authorizing admissions is of the opinion that the substitute decision-maker has given consent on the person’s behalf in accordance with this Act. 2017, c. 25, Sched. 5, s. 59. 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 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.  1996, c. 2, Sched. A, s. 40 (2). Section Amendments with date in force (d/m/y) 2007, c. 8, s. 207 (5)
- 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; 2017, c. 25, Sched. 5, s. 59 - not in force
41 Section 20 applies, with necessary modifications, for the purpose of determining who is authorized to give or refuse consent to admission to a care facility on behalf of a person who is incapable with respect to the admission.  1996, c. 2, Sched. A, s. 41.
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.  1996, c. 2, Sched. A, s. 42 (1). Best interests (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, i. improve the quality of the incapable person’s life, ii. prevent the quality of the incapable person’s life from deteriorating, or iii. 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.  1996, c. 2, Sched. A, s. 42 (2). Section Amendments with date in force (d/m/y) 2007, c. 8, s. 207 (6)
- 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
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.  1996, c. 2, Sched. A, s. 43. Conflict (2) Subsection (1) prevails despite anything to the contrary in the Personal Health Information Protection Act, 2004.  2004, c. 3, Sched. A, s. 84 (8). Section Amendments with date in force (d/m/y) 2004, c. 3, Sched. A, s. 84 (8) - 1/11/2004
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.  1996, c. 2, Sched. A, s. 44 (1). Collection and disclosure of information (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.  2004, c. 3, Sched. A, s. 84 (9). Exception (3) Subsection (1) does not authorize the making of a decision concerning the incapable person’s property.  1996, c. 2, Sched. A, s. 44 (3). Section Amendments with date in force (d/m/y) 2004, c. 3, Sched. A, s. 84 (9) - 1/11/2004
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.  1996, c. 2, Sched. A, s. 45.
47 (1) Despite any law to the contrary, but subject to subsections (3) and (4), 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.  1996, c. 2, Sched. A, s. 47 (1); 2022, c. 16, s. 9 (1). Consent or refusal to be obtained (2) When an admission to a care facility is authorized under subsection (1), the person responsible for authorizing admissions to the care facility shall obtain consent, or refusal of consent, from the incapable person’s substitute decision-maker promptly after the person’s admission.  2007, c. 8, s. 207 (9). Exception (3) Subsections (1) and (2) do not apply to an authorization by a placement co-ordinator of an ALC patient’s admission to a long-term care home in accordance with section 60.1 of the Fixing Long-Term Care Act, 2021. 2022, c. 16, s. 9 (2). Distinct from ALC patient admission (4) For greater certainty, an admission of an ALC patient to a long-term care home under section 60.1 of the Fixing Long-Term Care Act, 2021 is distinct from, and does not preclude, an admission to a care facility under this section. 2022, c. 16, s. 9 (2). Section Amendments with date in force (d/m/y) 2007, c. 8, s. 207 (9)
- 1/07/2010 2022, c. 16, s. 9 (1, 2)
- 21/09/2022 Incapacity
47.1 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 admission to a care facility such information about the consequences of the findings as is specified in the guidelines.  2007, c. 8, s. 207 (10). Section Amendments with date in force (d/m/y) 2007, c. 8, s. 207 (10) - 1/07/2010 Protection from Liability
48 (1) If the person responsible for authorizing admissions to a care facility admits, or authorizes the admission of, a person to the care facility with a consent that he or she believes, on reasonable grounds and in good faith, to be sufficient for the purpose of this Act, he or she is not liable for admitting the person, or authorizing the person’s admission, without consent.  1996, c. 2, Sched. A, s. 48 (1). Apparently valid refusal of admission (2) If the person responsible for authorizing admissions to a care facility does not admit, or does not authorize the admission of, a person to the care facility because of a refusal that he or she believes, on reasonable grounds and in good faith, to be sufficient for the purpose of this Act, he or she is not liable for failing to admit the person or failing to authorize the person’s admission.  1996, c. 2, Sched. A, s. 48 (2). Crisis admission (3) If the person responsible for authorizing admissions to a care facility admits, or authorizes the admission of, a person to the care facility under section 47 in good faith, he or she is not liable for admitting the person, or authorizing the person’s admission, without consent.  1996, c. 2, Sched. A, s. 48 (3). Reliance on assertion (4) If a person who gives or refuses consent to admission to 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 41, or an attorney for personal care described in clause 50 (2) (b); (b) meets the requirement of clause 20 (2) (b) or (c), as it applies for the purpose of section 41; or (c) holds the opinions required under subsection 20 (4), as it applies for the purpose of section 41, the person responsible for authorizing admissions to the care facility is entitled to rely on the accuracy of the assertion, unless it is not reasonable to do so in the circumstances.  1996, c. 2, Sched. A, s. 48 (4).
49 A person who gives or refuses consent on another person’s behalf to his or her admission to a care facility, acting in good faith and in accordance with this Act, is not liable for giving or refusing consent.  1996, c. 2, Sched. A, s. 49. Applications to Board
50 (1) A person may apply to the Board for a review of an evaluator’s finding that he or she is incapable with respect to his or her admission to a care facility.  1996, c. 2, Sched. A, s. 50 (1). 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 admission to a care facility; (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.  1996, c. 2, Sched. A, s. 50 (2). Parties (3) The parties to the application are: 1. The person applying for the review. 2. The evaluator. 3. The person responsible for authorizing admissions to the care facility. 4. Any other person whom the Board specifies.  1996, c. 2, Sched. A, s. 50 (3). Subss. 32 (4) to (7) apply (4) Subsections 32 (4) to (7) apply, with necessary modifications, to an application under this section.  1996, c. 2, Sched. A, s. 50 (4); 2000, c. 9, s. 37. Section Amendments with date in force (d/m/y) 2000, c. 9, s. 37
- 1/12/2000
51 (1) A person who is 16 years old or older and who is incapable with respect to his or her admission to a care facility may apply to the Board for appointment of a representative to give or refuse consent on his or her behalf.  1996, c. 2, Sched. A, s. 51 (1). Application by proposed representative (2) A person who is 16 years old or older may apply to the Board to have himself or herself appointed as the representative of a person who is incapable with respect to his or her admission to a care facility, to give or refuse consent on behalf of the incapable person.  1996, c. 2, Sched. A, s. 51 (2). 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 admission to a care facility, or an attorney for personal care under a power of attorney conferring that authority.  1996, c. 2, Sched. A, s. 51 (3). 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 41. 4. The person responsible for authorizing admissions to the care facility. 5. Any other person whom the Board specifies.  1996, c. 2, Sched. A, s. 51 (4). 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, (a) to his or her admission to the care facility; or (b) to his or her admission to any care facility, or to any of several care facilities specified by the Board, whenever an evaluator finds that the person is incapable with respect to the admission.  1996, c. 2, Sched. A, s. 51 (5). Subss. 33 (6) to (8) apply (6) Subsections 33 (6) to (8) apply, with necessary modifications, to an appointment under this section.  1996, c. 2, Sched. A, s. 51 (6).
52 (1) A substitute decision-maker or the person responsible for authorizing admissions to a care facility may apply to the Board for directions if the incapable person expressed a wish with respect to his or her admission to 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.  1996, c. 2, Sched. A, s. 52 (1); 2000, c. 9, s. 38 (1). Notice to substitute decision-maker (1.1) If the person responsible for authorizing admissions to the care facility intends to apply for directions, the person shall inform the substitute decision-maker of his or her intention before doing so.  2000, c. 9, s. 38 (2). Parties (2) The parties to the application are: 1. The substitute decision-maker. 2. The incapable person. 3. The person responsible for authorizing admissions to the care facility. 4. Any other person whom the Board specifies.  1996, c. 2, Sched. A, s. 52 (2). Directions (3) The Board may give directions and, in doing so, shall apply section 42.  2000, c. 9, s. 38 (3). Section Amendments with date in force (d/m/y) 2000, c. 9, s. 38
- 1/12/2000
53 (1) If a substitute decision-maker is required by paragraph 1 of subsection 42 (1) to refuse consent to the incapable person’s admission to 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 admission despite the wish; or (b) the person responsible for authorizing admissions to the care facility may apply to the Board to obtain permission for the substitute decision-maker to consent to the admission despite the wish.  2000, c. 9, s. 39 (1). Notice to substitute decision-maker (1.1) If the person responsible for authorizing admissions to the care facility intends to apply under subsection (1), the person shall inform the substitute decision-maker of his or her intention before doing so.  2000, c. 9, s. 39 (2). Parties (2) The parties to the application are: 1. The substitute decision-maker. 2. The incapable person. 3. The person responsible for authorizing admissions to the care facility. 4. Any other person whom the Board specifies.  1996, c. 2, Sched. A, s. 53 (2). Criteria for permission (3) The Board may give the substitute decision-maker permission to consent to the admission despite the wish if it is satisfied that the incapable person, if capable, would probably give consent because the likely result of the admission is significantly better than would have been anticipated in comparable circumstances at the time the wish was expressed.  1996, c. 2, Sched. A, s. 53 (3). Section Amendments with date in force (d/m/y) 2000, c. 9, s. 39
- 1/12/2000 53.1 Section Amendments with date in force (d/m/y) 2007, c. 8, s. 207 (11) - 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
55 This Part applies to personal assistance services.  1996, c. 2, Sched. A, s. 55.
56 In this Part, “substitute decision-maker” means a person who is authorized under section 58 to make a decision concerning a personal assistance service on behalf of a recipient who is incapable with respect to the service.  1996, c. 2, Sched. A, s. 56. Decision on Incapable Recipient’s Behalf