Recently, an elderly patient suffering from moderate-to-advanced stage dementia, with behavioural complications, was hospitalized on a psychiatric admission. The patient, who was declared incapable to consent to treatment, was initially held involuntarily under the Mental Health Act, RSO 1990, C M.7 (the “MHA”). The patient had appointed a cousin as their attorney for property and personal care. However, the cousin could not be located and there was a concern that the cousin may have predeceased the patient. The patient’s only available contact was an ex-spouse, who could not qualify as the patient’s substitute decision-maker (“SDM”) under the Health Care Consent Act, 1996, SO 1996, C 2, SCHED. A (the “HCCA”).

Fortunately, the ex-spouse provided the contact information of the patient’s estranged adult child from a previous marriage. Unlike the ex-spouse, the estranged child was eligible to act as the patient’s SDM under the HCCA (notwithstanding the estrangement), and ultimately agreed to take on this role. Meanwhile, because the patient’s attorney for property was missing, the Office of the Public Guardian and Trustee (the “PG&T”) began acting as the patient’s statutory guardian of property, in accordance with the Substitute Decisions Act, 1992, SO 1992, C 30 (the “SDA”).

While in hospital, the patient’s behaviour eventually stabilized. However, in order to be discharged, the patient would require a supportive environment. The Home and Community Care coordinator determined that while the patient was eligible for long term care (“LTC”), the patient lacked capacity to consent to apply to LTC. As such, it fell to the estranged child, as the SDM, to apply to LTC homes on behalf of the patient. The SDM ended up applying to five separate LTC homes. In the meantime, the patient remained in hospital as an alternate level of care (“ALC”) patient.

The discharge planner wanted to find temporary housing for the patient while they waited for LTC (which, in Ontario, can take a long time because the LTC system is at full occupancy), rather than have the patient remain in hospital as an ALC patient. The discharge planner consulted with the PG&T, who determined that the patient had significant financial assets and could afford to move to Memory Care in a private retirement home, which would cost approximately $8,000 per month. By comparison, the cost of LTC housing would be approximately $2,900 per month for a private room.

Because the PG&T was the patient’s guardian of property, the PG&T’s role was limited to managing the patient’s finances. As such, the PG&T did not have decision-making authority in respect of the patient’s housing/shelter. That decision fell to the SDM. In this case, the SDM did not want to move the patient to Memory Care in a retirement home, because of the cost. There were repeated discussions between the discharge planner, the PG&T and the SDM, but this did not resolve the impasse. The discharge planner was concerned that the SDM was not making a discharge decision in the patient’s best interests. Specifically, the discharge planner was concerned that the SDM was trying to preserve the patient’s assets to ensure there would be more in the estate after the patient’s death (the SDM stood to inherit).

The care team considered options for curtailing the SDM’s decision-making authority. One option was to have the patient appoint a new attorney for personal care, who could then make personal care decisions on behalf of the patient (including choice of shelter). However, at the time, there were no available candidates who could or would act as the patient’s attorney for personal care, so this option was a non-starter.

Another option was to apply to the Consent and Capacity Board (the “CCB”) with a Form G application, to seek direction and argue that the SDM was not making a shelter decision in the patient’s best interests. However, after reaching out to the CCB, the care team was informed that this option would not work either. Form G applications can only be used to determine whether an SDM has complied with the provisions of the HCCA. Because choice of shelter (other than LTC housing) is a personal care decision, it is governed by the SDA, not the HCCA.

The CCB explained that Form G applications may be made to the board in the following circumstances only:

• A Form G application with respect to treatment may be made only by a doctor who is proposing treatment;
• A Form G application with respect to admission to LTC may be made only by the person responsible for authorizing admission (i.e., the Home and Community Care coordinator);
• A Form G application with respect to personal assistance services may be made only by a person from the service provider responsible for providing care; and
• A Form G application may not be made with respect to any other care/service.

The CCB explained that, besides LTC admissions, there are no other applications which can be made with respect to choice of “shelter” or “housing” (except where, in some cases, this makes up part of a broader treatment plan).

The bottom line was that the hospital could not impose a choice of shelter/housing on the patient. That decision fell to the SDM, who had applied to five separate LTC homes, and had decided to have the patient remain in hospital as an ALC patient until admission to one of the LTC homes. The SDM was within their rights to make this decision, and was not obligated to accede to the hospital’s suggestion that the patient temporarily move to a private retirement home (which would be costly). Naturally, the hospital preferred that the patient move to a private retirement home, as doing so would open up the patient’s bed to other patients.

Ultimately, after an exhaustive search, the discharge planner located the cousin who had been previously appointed as the patient’s attorney for property and personal care. The cousin agreed to assume the responsibilities of substitute decision-making and agreed with the care team that it was reasonable, notwithstanding the costs, to move the patient to Memory Care in a retirement home, while awaiting admission to LTC housing.