Working with Patients and Substitute Decisions Makers (SDMs)

It is the responsibility of the treating healthcare provider to identify the SDM. The treating healthcare provider may delegate the act of identifying the SDM to another member of the healthcare team, but ultimately they remain responsible to ensure consent is obtained from the lawful SDM.

Healthcare interpreters, rather than family members, are to be used whenever possible. Family and friends who are acting as interpreters may:

• bring their own biases and unwittingly distort information being interpreted
• not have sufficient knowledge or language skills needed for interpretation
• omit important information

Using family or friends as interpreters may also involve breaching patient confidentiality.

Healthcare teams should consult Nova Scotia Health Language Services for information on how and when to access language interpretation for patients.

There may be situations where a patient has physical and/or cognitive disabilities that have contributed to their developing a unique language or communication style that is only well understood by one or two very close caregivers. In these cases, it may be necessary to involve those family members in at least some of the conversations to help to interpret the patient's meaning.

Sometimes situations can arise where families who are informally acting as interpreters will refuse the involvement of language interpreters. In such situations, the healthcare team should explore the reasons for the refusal and explore alternative options. The date, time and reason for refusal should be documented along with any actions taken to resolve the matter. For more information, see:

If the patient is an inpatient or outpatient receiving care in hospital, document assessment of capacity in the:

• Form A – Declaration of Capacity to Consent to Treatment (Form under the Hospitals Act)
  • Use this form to document assessment of capacity for healthcare decisions. Form A is specifically about treatment decisions.
• Form C – Declaration of Competency (Form under the Hospitals Act)
  • Use this form to document assessment of competency for financial decisions.

If a patient is an inpatient or outpatient receiving care in hospital or they are in the community, and their ability to consent to personal care decisions, such as placement in a long-term care home, needs to be assessed, document assessment of capacity for personal care decisions within the:

Form 1 – Assessment of Capacity to make Decisions about a Personal Care Matter (Form under the Personal Directives Act)

• Use this form to document assessment of capacity for personal care decisions. Form 1 is about personal care, which may be broader than just assessing capacity for treatment decisions and could include, for example, capacity for decisions about returning home or placement. In hospital, the Form 1 is not to be used for declaration of capacity for healthcare decisions — see above.

Given current legislation, the legal expectation is that where both treatment and personal care (e.g. placement) decisions are in play, both the Form 1 and Form A should be completed (see also the Consent to Treatment policy).

If a finding of incapacity is made for treatment or personal care decisions, a SDM needs to be identified and engaged to make decisions that the patient does not have decision-making capacity for. The SDM should complete the Declaration of Substitute Decision-Maker Form. Refer to the Consent to Treatment Policy and Procedure for more detailed information.

If patient regains capacity in a particular domain(s), then use either:

• Form B – Revocation of Declaration of Capacity
  • Use this to document the re-assessment of capacity for treatment/personal care decisions and to revoke a Form A.
• Form D – Revocation of Declaration of Competency
  • Use this form if patient regains competency for financial decisions and to revoke the Form C
• To revoke a Form 1 regarding capacity for personal care decisions, a new Form 1 needs to be completed and this must replace the older one.

This requires judgment, and sometimes healthcare teams can struggle to know when a capacity assessment is needed. For example, a patient might have occasionally fluctuating mental states. Or a patient might clearly have some capacity and is benefiting from support from the person who would be their SDM if an SDM was needed and there is consensus between everyone involved. Healthcare professionals may benefit from engaging Professional Practice in complex situations. When a formal capacity assessment is determined to be appropriate, the patient needs to be informed that their capacity is being assessed to give them the opportunity to do well.

Patients do have a legal right to refuse a capacity assessment where a team has determined an assessment is appropriate. This can leave healthcare providers in a difficult situation. Healthcare providers can sometimes benefit from exploring with the patient the reasons for their concern, reapproaching later, and/or as needed, working to build trust.

Yes, a personal directive made outside the province of Nova Scotia can be accepted provided that the document was valid in the jurisdiction in which it was made. If you are unsure, speak to your Manager and have them contact Legal.

Capacity assessments from other provinces or jurisdictions need to be revisited. A receiving healthcare provider always needs to ensure their due diligence and complete their own assessment. Capacity assessments are done at a point in time and are decision-specific. Capacity can change. Healthcare teams may wish to follow up with the patient's previous healthcare team where appropriate. There may be certain progressive medical conditions where, once a patient has lost decision-making capacity, it is unlikely to be regained, nonetheless the most responsible healthcare provider should confirm this through their own assessment.

When there is no delegate appointed under a personal directive and no legally appointed representative or guardian, the determination of an SDM must be in accordance with the statutory hierarchy. There may be more than 1 person at the same level of the statutory hierarchy. If there are multiple individuals at the same level of the SDM statutory hierarchy who meet the criteria (have capacity, are able and willing, and have had contact with the patient over the last 12 months), then the eligible individuals must decide among themselves who will ultimately be the one to have final decision-making authority and be responsible for directing the healthcare team.

For example, if the patient has more than one adult child who meets the criteria (have capacity, are able and willing, and have had contact with the patient over the last 12 months), the adult children must decide which of them will be the SDM and that person must sign the Declaration of SDM Form. The healthcare team does not have the authority to decide who the SDM will be.

Under the statutory hierarchy, only one individual can act as SDM. This individual signs the Declaration of SDM Form.

If possible, it can be helpful to have the other family members who are at the same level within the SDM statutory hierarchy sign the back of this form, as an acknowledgement of who has been appointed as SDM, but this is not required.

In some situations, SDMs may wish to give up their role as an SDM. In such cases, documentation that confirms the initial SDM's withdrawal, and identifies the new SDM will be necessary.

See also "What is a personal directive?".