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What happens if the patient is incapable of making decisions about medical care?

Many patients in intensive care units are not capable of making decisions about treatments. To be “capable,” the patient must be able to understand the problem, the recommended treatment options, and the consequences of giving consent. If it is not immediately clear whether a patient is capable, special assessments or testing may be required.

If a patient is not capable of deciding for him- or herself, a Substitute Decision Maker (SDM) will be responsible for giving consent.

  • Substitute decision makers are usually family members who are related by blood or marriage, but not always.
  • Some patients have completed legal paperwork that names someone other than a family member to be the SDM.
  • The law provides a list of who is allowed to act as the SDM. In general, SDMs must be at least 16 years old, capable of decision making themselves, and must be willing and available to help make decisions.

Making care decisions when a patient is incapable Link will open in a new window

The following links are very helpful in learning more about making decisions about life supporting therapies and resuscitation:

What are the responsibilities of the Substitute Decision Maker?

The Substitute Decision Maker (SDM) is legally required to make decisions on behalf of the patient. The SDM must try to make a decision based on what the patient would want.

  • If the SDM knows about the patient’s wishes for medical care, then the SDM must give, or refuse, consent for treatments in keeping with those wishes.
  • Some patients express wishes in advance by talking to family members or creating a Living Will (learn more about a Living Will, or Advance Care Planning Link will open in a new window). These are important sources of information that the SDM should share with the patient’s care team.
  • The SDM is encouraged to communicate with the team on a daily basis, in person or by phone.

What if the patient did not previously express any wishes about medical care

If the SDM is not aware of relevant health-care wishes, the SDM must decide on the basis of what seems to be in the patient’s best interest. To do this, the SDM must take into account:

Will the SDM have to provide consent for every treatment the patient receives?

The team will not formally ask for consent for low-risk interventions. In fact, agreeing to be admitted to an ICU implies consent to many of the routine procedures – unless the team has been advised otherwise.

Not every patient will want all interventions. The key points to keep in mind:

  • Patients have the right to not receive treatments that they don’t want.
  • Consent can be withdrawn at any time.
  • Inform the team if you are aware of any particular interventions that your loved one wants to avoid.

Unless it is an emergency, or the treatment has not already been declined in advance, the team will have a formal discussion with the patient or the SDM about major interventions, such as:

  • Tracheostomy,
  • Colonoscopy,
  • Blood transfusion,
  • Gastrostomy,
  • Surgery,
  • Amputation.

The discussion includes a description of risks and benefits of the proposed treatment and its alternatives.

Can the patients or their SDMs ask for certain treatments?

Patients or their Substitute Decision Makers can ask for certain treatments, but do not have the absolute right to receive every treatment that they might request.

For a medical treatment to proceed, there must not only be a patient willing to receive it, but also a physician willing to offer and supervise the treatment.

More information about consent can be obtained from Ontario’s Health Care Consent Act Link will open in a new window.

What is the role of the Consent and Capacity Board?

The Consent and Capacity Board (CCB) provides expert panels that become involved when there are disagreements about the care of patients who are not able to speak for themselves.

The expert panels get involved only when a patient is not able to make decisions and has not left clear instructions about what care he or she would want in the circumstances.

Who is on the Consent and Capacity Board expert panel?

The Consent and Capacity Board panel is made up of a legal expert, a physician, and a member of the community.

What type of questions will the panel answer?

In the case of the ICU, the Consent and Capacity Board is typically involved in answering one of two questions:

  • What treatment or option the patient would have wanted;
  • Who the substitute decision maker should be when there is disagreement among potential decision makers.

How does the Consent and Capacity Board panel reach a decision about the treatment the patient would have wanted?

  • The panel members listen to the treatment options and the potential outcomes from each option. The panel can only choose from treatment options that are being offered by the treatment team;
  • They also consider the values of the patient or statements that he or she made during his or her life, which might help determine the option he or she would have chosen.

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Location and contact

Critical Care Medicine

Sunnybrook Health Sciences Centre
2075 Bayview Avenue, 
D-wing, 1st floor
room D1 08
Toronto, ON M4N 3M5

Phone: 416-480-4522
Fax: 416-480-4999

For information about patients admitted to Sunnybrook's Intensive Care Units, please contact the unit through the hospital switchboard at 416-480-6100