PHIPA provides specific provisions in case when individual is incapable then the following persons may consent and they are-
- The individual’s guardian of the person person or guardian of the property (when consent relates to the guardian’s authority to make a decisions on individual’s behalf)
- The individual’s attorney for personal care or attorney for property (when consent relates to the guardian’s authority to make a decisions on individual’s behalf)
- The individual’s representative appointed by the board u/s.27
- A child or parent of the individual or a childreds’ aid society or other person lawfully entitled to give/refuse consent in the place of parents.
- A parent of the individual who has only a right to access to the individual.
- A brother or sister of the children
- Any relative of the individual.
However, the above first mentioned person has to meet the requirement given in subsection which says that person must not be incapable of consenting, at least should be of 16 years old, not prohibited by court order or separation agreement, person is available and willing to assume the responsibility.
In case when no person (described above) meets the requirements then in such case the public guardian and trustee may make the decision to consent. When the situation arises an individual capable of consenting may revoke the appointment under PHIPA in writing.
Appointment of Representative
When an individual who is 16 years old or older is determined to be incapable of consenting, he/she may apply to the board for appointment of a representative on his/her behalf.
The proposed representative may move an application to the Board to be appointed as representative to consent on behalf of that incable individual.
The Board may appoint if it is satisfied that the following requirements are met and they are:
- Individual (about whom an information is related with) does not object his/her appointment
- The consented representative is capable to consent and 16 year old
- The appointment is in the best interest of that individual
On fulfilment of criterion board may appoint the represatie for the individual and such appointment can be terminated when representative -requests termination, no longer capable of consenting, no longer in the best interest of the individual or individual has a guardian.
In all PHIPA under section 21 to 28 deals with all aspect of consent and minutely takes care of several situations which may arise while dealing with a person who is incapable of consent.
Picture Credit-https://compliancy-group.com