Substitute decision-maker consent: who decides when a client cannot
A capable client gives their own consent, whatever the family thinks. When a client cannot decide, the law's order names who does.
- A capable client decides, whatever the family thinks.
- A legally appointed person ranks ahead of the family.
- The provider who proposes the treatment judges capacity. You report what you see and hear.
A capable client gives their own consent, and the family cannot overrule it. When a client cannot decide, a substitute decision-maker gives consent, in the order the law sets, and a legally appointed person comes before the family. This guide follows one nurse through four cases.
A capable client decides
Your client explains the planned surgery to you clearly and says she wants it. Minutes later her daughter says across the bed, “I'm her daughter, and I don't agree to this surgery.”
First ask if your client is capable of this decision today. She is, so her consent is the one that counts, whatever her family thinks. You can still listen to her daughter's worry. The decision stays with your client.
When the client cannot decide
Now suppose your client was confused since last night and could not tell you what was proposed. Her husband is at the bedside. Her sister was legally appointed to make her health decisions.
A legally appointed person ranks ahead of the family. So the sister decides, if she is available and willing, even though the husband is the one in the room.
Nothing here is urgent, so you and the team hold the surgery until the sister answers. If the confusion clears, the decision goes back to your client.
In an emergency
- The client cannot decide.
- Nobody can be reached in time.
- Urgent treatment can start while the team keeps looking for the substitute decision-maker.
- A refusal the client made while capable still counts.
A young person who understands
A sixteen-year-old needs stitches and explains the risks and the benefits in his own words. Age alone does not settle it. A young person who understands the treatment can give consent, as your province's law allows.
Who judges capacity
In each case the provider who proposes the treatment judges capacity. You report what you see and hear, such as when the confusion began.
The order of substitute decision-makers and the rules for young people differ between provinces. Follow your provincial law and your agency's policy. See what makes consent valid, or read the whole topic.