Substitute Decision-Makers

Non-Custodial Parent

Robert calls wanting to see you right away about his 8-year-old daughter Olivia. Olivia is with him for the day and has to be returned to her mother the next morning. Robert is concerned that Olivia is not being adequately fed by her mother and wants you to assess Olivia. You learn that Robert is not the custodial parent; he just has access rights. He says there is no provision in their separation agreement about his right to authorize medical care for Olivia. What do you do?

To determine whether Robert can provide consent, you need to know if , as an a non-custodial parent, he has the authority to do so.  Note that the Substitute Decision-Makers Ranked Highest to Lowest below,  ranks the custodial parent higher than the access parent. If the higher ranked substitute decision-maker would object to a medical assessment or treatment, then, a lower ranked substitute usually could not give consent.  Robert has admitted that there is no provision in their separation agreement about his right to authorized medical care, Olivia's assessment would require an informed consent from the custodial parent. 
As a practical matter, when dietitians are dealing with a family member of an incapable client, they merely have to establish:
  • Whether the family member knows of any formally appointed substitute; and, if not,
  • Whether the family member knows of another higher ranked substitute who would object to the family member making the decision.
If a formally appointed substitute — such as a power of attorney or another higher ranked family member — would object to a decision, then the dietitian cannot rely on the lower level substitute to make it. The dietitian must try to obtain consent from a higher-level substitute if they are available and willing. In this scenario, a dietitian would have to obtain consent from Olivia's mother, the custodial parent, for the nutritional assessment.
Mandatory Reporting Obligation

In this scenario, if you suspected that Olivia was a child in need of protection, you would have a professional obligation to make a report to the Child's Aid Society. If, in addition to Robert's information, Olivia also looked neglected, you would have grounds for such a mandatory report. You might even have sufficient information from Robert, although you would have to be cautious about his objectivity.
Substitute Decision-Makers Ranked Highest to Lowest
(Office of the Public Guardian and Trustee (2016). Making Substitute Health Care Decisions: The Role of the Office of the Public Guardian and Trustee.
  1. Guardian of the person appointed by the courts
  2. Attorney for personal care conferred by a written form when the client was capable
  3. Consent and Capacity Board appointed representative
  4. Spouse or partner
  5. Child or custodial parent
  6. Access parent
  7. Brother or sister
  8. Any other relative
  9. Public Guardian and Trustee
Where a substitute from the first three on this list is able and willing to make the decision, then he or she must be used. At the family member level, any available substitute on the list can be relied upon, as long as no higher ranked substitute is available who is known to want to make the decision. The Public Guardian and Trustee, a government official, is relied upon as a last resort.

For more information about the Office of the Public Guardian and Trustee for Ontario, see: