Who can consent when a patient is incapable?

March 11, 2026

This practice scenario highlights three key consent issues under Ontario’s Health Care Consent Act, 1996.

Complex issues: Consent to nutrition treatment

Practice Scenario: Who can consent when a patient is incapable?

Anna is a 75-year-old woman with esophageal cancer who has been transferred to a palliative care unit. Until recently, she was able to make her own nutrition treatment decisions. Her condition has now declined, with periods of confusion, prolonged sleep, and intermittent unconsciousness, making oral intake unsafe.  Anna has a large, supportive family, including her adult twin children, grandchildren, and siblings.

This scenario highlights three key consent issues under Ontario’s Health Care Consent Act, 1996 (HCCA):

  1. Identifying a substitute decision-maker (SDM).
  2. Managing conflicts between SDMs.
  3. Consent at end of life.

Dietitian responsibilities under the HCCA

Dietitians must obtain informed consent before providing nutrition treatment. This includes determining whether the client has the capacity to consent. A client is incapable if they cannot understand the relevant information or appreciate the consequences of a decision or lack of decision.

When a client is found incapable, a dietitian must:

  • Inform the client of the findings and explain the reasons in an understandable way.
  • Advise the client of their right to request a review.
  • Identify and contact the appropriate SDM.

Identifying a Substitute Decision-Maker

If no SDM has been previously appointed, the HCCA provides a hierarchy of individuals who may give or refuse consent. The Office of the Public Guardian and Trustee (OPGT) is the last option one would use for consent (see list below).

Hierarchy of Substitute Decision‑Makers

  1. Guardian of the person
  2. Attorney for personal care
  3. Board‑appointed representative
  4. Spouse or partner
  5. Child or parent (excluding access‑only parents)
  6. Parent with right of access only
  7. Sibling
  8. Other relative
  9. Office of the Public Guardian and Trustee

To act as an SDM, a person must be willing, capable, and available. Physical presence is not required if timely communication is possible.

In Anna’s case, no power of attorney existed. Her twin children were therefore identified as equally ranked SDMs and agreed to act jointly, in accordance with Anna’s known values and best interests.

Consent and Capacity Board

What happens when a client does not have any family or other assigned substitute decision-maker? In this case, someone else (for example, a client’s friend) may apply to the Consent and Capacity Board to be appointed as the client’s representative for personal care decisions.

Personal care includes healthcare, nutrition, shelter, clothing, hygiene and safety. This process requires applying to the Board followed by a hearing. At the hearing the applicant will be asked to present information to help the Board decide whether they should be appointed as the SDM for the incapable person.

Office of the Public Guardian & Trustee

What happens when there is no family member or representative available to be appointed as an SDM? Then the healthcare provider who is proposing the treatment, or the healthcare provider overseeing a client’s care (for example, a case manager), is responsible for contacting the Office of the Public Guardian and Trustee.

Staff of the Public Guardian and Trustee will then take on the responsibilities of a SDM and make informed care decisions on the client’s behalf once they have confirmed that the client is indeed incapable and that no other substitute is available. The Office of the Public Guardian and Trustee is called to act on behalf of a client only when there are no other legal substitutes available.

Conflict between substitute decision makers

Making decisions about the health care of a family member can often be difficult. Because of the sensitive nature of making treatment decisions on behalf of another person, varying opinions may arise.

Where there are disagreements about whether to give or refuse consent between two or more equally ranked substitute decision-makers (for example, two children), the HCCA specifies that the Office of the Public Guardian and Trustee shall make the decision in their place.

Anna’s twin children attended a meeting with the healthcare team to discuss their mother’s prognosis. They were asked whether they wish to pursue any further treatment including options for tube feeding, or hydration administered intravenously.

Anna’s twins agreed not to pursue tube feeding but disagreed on intravenous hydration. One believed it would prolong suffering; the other feared dehydration would cause discomfort. With no advanced directive and no agreement, the OPGT was contacted to decide.

End-of-life decision-making

End‑of‑life care must remain client‑centred, guided by informed discussions and the client’s known goals, values, and beliefs. Decisions may include accepting, refusing, or withdrawing treatment, and ongoing communication is essential.

Family involvement

Family may include biological family, family of acquisition (related by marriage/contract), and family of choice and friends. The client or SDM determines who will be involved in the care decisions and who will be present at their bedside. It is the responsibility of the healthcare team to know with whom they may share information about a client’s health status. Just because a family member is present in the room or at the bedside, doesn’t warrant implied consent to disclose personal health information.

The representative from the Office of the Public Guardian and Trustee consulted with Anna’s children, other family members, the health care team, and did extensive research regarding hydration and end-of-life care. After much deliberation and discussion with all those involved, the representative decided not to pursue any further treatment for Anna. Comfort measures were provided and Anna passed away peacefully four days later, with much of her family at her bedside.

Ethical considerations for dietitians

Dietitians must respect decisions made by a client or SDM, even when they conflict with their own values. If a dietitian believes an SDM is not acting in the client’s best interest, they may apply to the Consent and Capacity Board. The Board may direct the SDM to comply with their legal obligations or appoint an alternate decision‑maker.

Consent Checklist for Dietitians

Step 1: Assess Capacity

  • Determine if the client can understand relevant information and appreciate the consequences of their decisions or non-decisions.
  • Understanding means the person can:
    1. Take in, retain and process relevant information long enough to reach a decision, and
    2. Demonstrate in their communications that they understand the treatment being proposed.
  • Appreciating the consequences means the person can:
    1. Realistically evaluate their current condition or situation.
    2. Apply relevant information to their own circumstances.
    3. Weigh risks and benefits of the available options.
    4. Demonstrate that they have considered the consequences of their choice.
  • If the client cannot understand or appreciate the consequences of a decision or lack of a decision, they cannot make a nutrition treatment decision.
    • Explain the findings to the client clearly and respectfully. This should include why they are incapable of consenting to a treatment decision and that you will contact their SDM who will decide on their behalf.
    • Inform them of their right to request a review (sometimes called an ‘appeal’) of your finding of incapacity to consent and your intention of contacting their SDM.
    • This resource can be helpful. It provides a script to help explain rights advice to a client.

Step 2: Identify the Substitute Decision-Maker (SDM)

  • Check if the power of attorney or guardian exists.
  • If none, follow the HCCA SDM hierarchy:
    1. Guardian of the person
    2. Attorney for personal care
    3. Board-appointed representative
    4. Spouse/partner
    5. Child or parent
    6. Sibling
    7. Other relative
    8. Office of the Public Guardian & Trustee (last resort)
  • Confirm that the SDM is willing, capable, and available.
  • Contact the SDM and involve them in decision-making.

Step 3: Manage Conflicts Between SDMs

  • If two equally ranked SDMs disagree:
    • Attempt discussion and mediation if possible.
    • If unresolved, the OPGT makes the decision.
  • Document all attempts at communication and any disagreements.

Step 4: Consent at End-of-Life

  • Decisions must be client-centered, guided by known goals, values, and beliefs.
  • Ensure ongoing communication with SDMs about comfort measures and treatment options.
  • Respect decisions to accept, refuse, or withdraw treatments.

Step 5: Family Involvement and Confidentiality

  • Confirm who the client or SDM authorizes to be involved.
  • Do not assume presence equals consent to share health information.
  • Only share personal health information with authorized individuals.

Step 6: Dietitian Responsibilities

  • Provide nutrition treatment only after informed consent by client or SDM.
  • If you believe an SDM is not acting in the client’s best interest:
    • Work with your interprofessional team
    • Determine if you should apply to the Consent and Capacity Board for review or alternate SDM appointment.
  • Respect decisions even if they conflict with your personal values, while documenting your professional opinion.

Step 7: Documentation

  • Record:
    • Capacity assessment and reasoning
    • SDM identification and communications
    • Discussions of treatment options and decisions
    • Any conflicts and resolutions, including OPGT involvement
    • Client-centered considerations (values, goals, beliefs)

Step 8: Review and Follow-Up

  • Reassess the client’s capacity regularly.
  • Keep SDMs updated on changes in condition or treatment options.
  • Maintain transparency and consistency in care decisions. 

Tip for Dietitians: This checklist ensures you act in compliance with the HCCA, support ethical decision-making, and protect both the client and your professional responsibilities.

Adapted from: Health Professions Regulators of Ontario (2019), Consent & Capacity Resources.

References

Legislation
Health Care Consent Act, 1996. S.O. 1996, c.2, Sched. A.
Substitute Decisions Act, 1992, S.O. 1992, c.30.

Other regulatory and government resources
College of Physicians and Surgeons of Ontario (2023). Decision-making for end-of-life care.
Consent and Capacity Board. (n.d.). Applying to Be Appointed a Representative to Make Decision(s) with Respect to Treatment, Admission to a Care Facility and/or Personal Assistance Services (Form C).
Health Profession Regulators of Ontario (2019). Consent and Capacity Resources:

Office of the Public Guardian and Trustee. (2021a). A guide to the Substitute Decisions Act, 1992. Government of Ontario.
Office of the Public Guardian and Trustee (2021b). Making Substitute Health Care Decisions: The Role of the Office of the Public Guardian and Trustee.
Office of the Public Guardian and Trustee. (2017). Powers of attorney: Questions and answers. Government of Ontario.

This article is based on “Complex Issues & Consent to Treatment” by Deborah Cohen, RD which appeared in the Spring 2013 issue of Résumé, the former newsletter of the College of Dietitians of Ontario. It was updated by the College in January 2026.