Fred is 81 years-old, has early signs of dementia and has kidney disease which is getting progressively worse. He has lived in Sault Ste. Marie all his life. His Nephrologist, Dr. Kolff, feels that it is very likely that Fred will require dialysis in the near future. Fred lives independently at home. His wife passed away 2 years ago. He has one adult son who lives nearby, visits him every day to check on him, and accompanies him to all medical appointments. Fred does not have an Attorney for Personal Care.

At his next appointment with Dr. Kolff, she explains to Fred that his kidneys are failing and that a good option for him is something called peritoneal dialysis. She explains what the treatment is, how it works including the surgical procedure that he needs to have before he can have dialysis, what the risks and benefits are, and other things to consider such as diet, scheduling of treatment, travel and activities, and impact on his day-to-day life. In order to perform the surgical procedure and begin dialysis, Dr. Kolff will need to obtain Fred’s consent but first must determine whether Fred is capable of making that treatment decision himself.

This is a two-part question. Answer both parts:

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Part 1: In your own words explain the test for capacity citing relevant Ontario legislation.

Dr. Kolff feels that Fred is confused about his medical condition and does not understand the process of peritoneal dialysis despite having explained it to him a number of times. While sitting in Dr. Kolff’s office, Fred tells his son that Dr. Kolff is getting him mixed up with another male patient and that his kidneys have gotten much better recently and that he doesn’t need peritoneal dialysis or to continue to see Dr. Kolff for that matter. Dr. Kolff assures Fred that she is not confusing him with another patient and that his kidney disease is, in fact, getting worse. She explains that Fred will likely require dialysis in future and that if he does not have dialysis he will become very sick and will eventually die. Fred is adamant that he doesn’t require any medical treatment because he no longer has kidney disease.

Part 2: Based on the information that you have about the above scenario, should Dr. Kolff look to Fred to make decisions about his own treatment or should she look to a substitute decision-maker to make decisions on Fred’s behalf? Explain why.

If you take the position that Dr. Kolff should look to a substitute decision-maker to make decisions on Fred’s behalf, who should be Fred’s substitute decision-maker and explain why citing relevant Ontario legislation?

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