For persons who previously had decision-making capacity, the SDM must make decisions for the patient that reflect the patient's capable, informed, and most-recently expressed preferences. The following are exceptions to following the patient’s prior capable informed preferences:
If prior expressed, capable preferences are unknown, decisions should be made according to the patient's values and beliefs.
If the patient's preferences, values, and beliefs are unknown, decisions should be guided by the patient's best interests.
Where the patient is a person who has never or has not yet developed decision-making capacity (for example, young children), the patient's best interests are the basis for substitute decision-making. In some instances, uncertainty can arise regarding the extent to which the patient's best interests can be separated from their family's (e.g. child and parents).
In situations where the patient did previously have decision-making capacity, sometimes the applicability of a patient's prior expressed preferences may be rightly questioned, perhaps due to new technologies or a very different context than the one the patient had imagined. There can also be situations where a patient's prior expressed preferences are indeed applicable, but they may be in tension with what others take to be in the patient's best interests. These types of situations can be a significant source of moral distress, and additional support (e.g. Ethics, Legal) for the healthcare team and/or SDM may be useful.
(See 54B in Hospitals Act)
The SDM should consider all of the following:
Ideally a thoughtful, open-minded, inclusive, well-informed discussion will generate consensus on a patient's "best interests" in the context of a specific decision. However, in practice, disagreement and uncertainty can arise. Sometimes disagreement might relate to short versus long-term harms, or uncertainties. It may also relate to challenges in weighing different kinds of harms against each other, such as physical, psychological, and relational harms.
A delegate/SDM appointed under a Personal Directive can make decisions that they are delegated to do when the patient lacks capacity. Typically, this includes all healthcare and personal care decisions (medical, placement, etc.), unless the personal directive limits this authority to certain domains.
If the SDM is a court-appointed representative, the Representation Order will set out which particular kinds of decisions the representative has authority for.
An SDM appointed under the statutory hierarchy is able to make the following kinds of decisions: all healthcare/medical decisions (including discharge), decisions to accept an offer of placement in a continuing-care home and home-care services decisions.
In general, SDMs do not have authority to consent to treatment that would be regarded as "non-therapeutic", such as a non-therapeutic sterilization.
For the most part, the SDM's authority ceases when the patient dies, except for organ donation after death and where consent for autopsy is required. There may be additional examples in which an SDM might continue to be involved in decision-making, but these would be rare circumstances and Managers involved in such cases would be encouraged to contact Legal Services.
If an SDM would like to obtain some or all of a patient's health records after death, the SDM should be directed to the Access and Disclosure Health Records Department. There are limitations on what SDMs or other family members are entitled to access in the patient's health record after death, and different processes apply depending on the situation.
Select a tab for the definition
Adult: A person who is 19 years of age or more.
Best Interest: In practice, the term is often used to mean an all-things-considered assessment of what is optimal for a patient, given the available options. A legal definition is available in section 54B in the Hospitals Act.
Capacity: An ability to understand the information relevant to the situation and an ability to appreciate the consequences of decision-making. Note: this term may be defined differently depending on the applicable legislation.
Common-law partner: With respect to a patient, a common-law partner is a person who has cohabitated with the patient in a conjugal relationship for at least one year.
Delegate: A person 19 years of age or older who is authorized in a Personal Directive (PD) to make personal care decisions on another person’s behalf when that person lacks capacity to make these decisions on their own. The delegate is usually a family member or friend but does not have to be. Sometimes an alternate delegate is named in case the first delegate is not able to act. A delegate is also referred to as a substitute decision-maker or SDM.
Ethics support: Available to help healthcare teams, patients and families identify and analyze the values at play and in tension, and to explore ethics dimensions and options available. For more information, visit https://www.nshealth.ca and search "ethics".
Family: In this document, the term "family" is meant to be understood broadly to include those whom a patient identifies as being within their immediate support network.
Healthcare team: Includes all healthcare providers who contribute to looking after a patient. This may include doctors and nurses, respiratory or occupational therapists, physiotherapists, social workers, care coordinators, personal support workers, and more.
Mature minor: In Nova Scotia, a person under the age of 19 who has the capacity to make their own healthcare decisions.
Next of kin: Next of kin is not a legal term, but a term that has been used in health care and continues to be used informally. Typically, this refers to a person (not necessarily a family member) identified by the patient as someone who is their support person and who should be called, for example, if the patient requires supplies brought in or transportation after a procedure. Note that this may not be their legal substitute decision-maker should the patient lose decision-making capacity.
Personal Directive: A personal directive is a legal document in which a person with capacity to make personal care decisions sets out what they would want for their health care and/or personal care and/or who they want to make these decisions on their behalf in the event they are no longer capable of making those decisions on their own.
Power of Attorney: Power of attorney is a document that legally designates one or more people to make decisions related to property and finances of another person.
Substitute Decision-Maker (SDM): Someone who has authority to make personal care and/or healthcare decisions on behalf of a person who lacks capacity to make these decisions on their own.
Statutory Hierarchy: If (i) the patient has not named a delegate in a personal directive, and (ii) there is no Representation Order or legally appointed guardian, the SDM is determined in accordance with the (iii) statutory hierarchy, as outlined below:
Spouse: With respect to a patient, a spouse is a person who is cohabitating with the patient in a conjugal relationship as married spouse, registered domestic partner, or common-law partner.