Health Care Consent Act, 1996

PART I GENERAL

1 The purposes of this Act are, (a) to provide rules with respect to consent to treatment that apply consistently in all settings; (b) to facilitate treatment, admission to care facilities, and personal assistance services, for persons lacking the capacity to make decisions about such matters; Note: On a day to be named by proclamation of the Lieutenant Governor, clause 1 (b) of the Act is amended by striking out “admission to care facilities” and substituting “admission to or confining in care facilities”. (See: 2017, c. 25, Sched. 5, s. 54 (1)) (c) to enhance the autonomy of persons for whom treatment is proposed, persons for whom admission to a care facility is proposed and persons who are to receive personal assistance services by, (i) allowing those who have been found to be incapable to apply to a tribunal for a review of the finding, (ii) allowing incapable persons to request that…

2 (1) In this Act, “attorney for personal care” means an attorney under a power of attorney for personal care given under the Substitute Decisions Act, 1992; (“procureur au soin de la personne”) “Board” means the Consent and Capacity Board; (“Commission”) “capable” means mentally capable, and “capacity” has a corresponding meaning; (“capable”, “capacité”) “care facility” means, (a) a long-term care home as defined in the Fixing Long-Term Care Act, 2021, or (b) a facility prescribed by the regulations as a care facility; (“établissement de soins”) “community treatment plan” has the same meaning as in the Mental Health Act; (“plan de traitement en milieu communautaire”) Note: On a day to be named by proclamation of the Lieutenant Governor, subsection 2 (1) of the Act is amended by adding the following definition: (See: 2017, c. 25, Sched. 5, s. 55 (1)) “confining in a care facility” and re…

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. 199…

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 th…

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…

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 materi…

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 ha…

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 th…

Consent on Incapable Person’s Behalf Consent

20 (1) If a person is incapable with respect to a treatment, consent may be given or refused on his or her behalf by a person described in one of the following paragraphs: 1. The incapable person’s guardian of the person, if the guardian has authority to give or refuse consent to the treatment. 2. The incapable person’s attorney for personal care, if the power of attorney confers authority to give or refuse consent to the treatment. 3. The incapable person’s representative appointed by the Board under section 33, if the representative has authority to give or refuse consent to the treatment. 4. The incapable person’s spouse or partner. 5. A child or parent of the incapable person, or a children’s aid society or other person who is lawfully entitled to give or refuse consent to the treatment in the place of the parent. This paragraph does not include a parent who has only a right of acces…

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 in…

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 fa…

Emergency Treatment Emergency treatment

25 (1) For the purpose of this section and section 27, there is an emergency if the person for whom the treatment is proposed is apparently experiencing severe suffering or is at risk, if the treatment is not administered promptly, of sustaining serious bodily harm. 1996, c. 2, Sched. A, s. 25 (1). Emergency treatment without consent: incapable person (2) Despite section 10, a treatment may be administered without consent to a person who is incapable with respect to the treatment, if, in the opinion of the health practitioner proposing the treatment, (a) there is an emergency; and (b) the delay required to obtain a consent or refusal on the person’s behalf will prolong the suffering that the person is apparently experiencing or will put the person at risk of sustaining serious bodily harm. 1996, c. 2, Sched. A, s. 25 (2). Emergency treatment without consent: capable person (3) Despite se…

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 i…

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 he…

33 (1) A person who is 16 years old or older and who is incapable with respect to a proposed treatment 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. 33 (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 a proposed treatment, to give or refuse consent on behalf of the incapable person. 1996, c. 2, Sched. A, s. 33 (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 proposed treatment, or an attorney for personal care under a power of attorney conferring that authority. 1996, c. 2, Sched. A, s. 33 (3). Parties (4) The parties to the applicat…

34 (1) A person may apply to the Board for a review of a decision to consent on the person’s behalf to the person’s admission 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. 34 (1). Exception (2) Subsection (1) does not apply to a decision to consent on the person’s behalf to the person’s admission to a psychiatric facility as an informal patient, as defined in the Mental Health Act, if the person is at least 12 years old but less than 16 years old. 1996, c. 2, Sched. A, s. 34 (2). Admission and treatment despite application (3) The decision to admit the person to the hospital, psychiatric facility or health facility may take effect, and the treatment may be administered, even if the person indicates that he or she intends to apply to the Board under subsection (1) or under subsection 13 (1) of …

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 p…

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 prop…

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). Direction…

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 -…

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’…

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 …

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.

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). 1996, c. 2, Sched. A, s. 46 (1). Same (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, (i) the incapable person intends to apply, or has applied, to the Board for appointment of a representative to give or refuse consent t…

Crisis Admission

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 sub…

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 admissio…

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,…

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, Sch…

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 th…

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 partie…

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

54 (1) If consent to admission to a care facility is given or refused on an incapable person’s behalf by his or her substitute decision-maker, and if the person responsible for authorizing admissions to the care facility is of the opinion that the substitute decision-maker did not comply with section 42, the person responsible for authorizing admissions to the care facility may apply to the Board for a determination as to whether the substitute decision-maker complied with section 42. 1996, c. 2, Sched. A, s. 54 (1). Parties (2) The parties to the application are: 1. The person responsible for authorizing admissions to the care facility. 2. The incapable person. 3. The substitute decision-maker. 4. Any other person whom the Board specifies. 1996, c. 2, Sched. A, s. 54 (2). Power of Board (3) In determining whether the substitute decision-maker complied with section 42, the Board may subs…

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

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

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, …

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. …

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

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 a…

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

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 Oblig…

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 …

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

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 car…

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