Powers of Attorney for Personal Care Part 3 – Giving or Refusing Consent
“I know Ontario doesn’t have living wills."
Clients mention this to me occasionally. It’s not a correct statement.
What is commonly called a living will is a document that expresses a person’s intentions or directions about medical treatment if the person is near the end of life. There isn’t a law in Ontario that uses the term “living will”. But the Health Care Consent Act (HCCA) requires that a substitute decision maker for an incapable person make any decision about giving informed consent to treatment in accordance with the incapable person’s prior capable wishes.
The HCCA principles for giving or refusing consent start with the presence or absence of applicable, prior, capable wishes, and then provide guidelines for determining best interests when there are no applicable, prior, capable wishes. These principles apply to all substitute decision makers, although this blog is about attorneys for personal care. Here they are, straight from the statute:
Principles for giving or refusing consent
21 (1) A person who gives or refuses consent to a treatment on an incapable person’s behalf shall do so in accordance with the following principles:
1. If the person knows of a wish applicable to the circumstances that the incapable person expressed while capable and after attaining 16 years of age, the person shall give or refuse consent in accordance with the wish.
2. If the person does not know of a wish applicable to the circumstances that the incapable person expressed while capable and after attaining 16 years of age, or if it is impossible to comply with the wish, the person shall act in the incapable person’s best interests. 1996, c. 2, Sched. A, s. 21 (1).
(2) In deciding what the incapable person’s best interests are, the person who gives or refuses consent on his or her behalf shall take into consideration,
(a) the values and beliefs that the person knows the incapable person held when capable and believes he or she would still act on if capable;
(b) any wishes expressed by the incapable person with respect to the treatment that are not required to be followed under paragraph 1 of subsection (1); and
(c) the following factors:
1. Whether the treatment is likely to,
i. improve the incapable person’s condition or well-being,
ii. prevent the incapable person’s condition or well-being from deteriorating, or
iii. reduce the extent to which, or the rate at which, the incapable person’s condition or well-being is likely to deteriorate.
2. Whether the incapable person’s condition or well-being is likely to improve, remain the same or deteriorate without the treatment.
3. Whether the benefit the incapable person is expected to obtain from the treatment outweighs the risk of harm to him or her.
4. Whether a less restrictive or less intrusive treatment would be as beneficial as the treatment that is proposed. 1996, c. 2, Sched. A, s. 21 (2).
The attorney must give or refuse consent in accordance with a prior, capable, wish that is applicable to the circumstances, and this is what amounts to a “living will” provision in Ontario law.
The prior, capable wish does not have to be in writing. This leads me to sometimes caution clients about making statements that may not be fully considered, in reaction to a high-profile story in the media or a calamity faced by someone else in their social circle (or late at night after a few glasses of wine).
In the absence of a prior, capable, wish that is applicable to the circumstances, the attorney must make the decision in the grantor’s best interests. Subsections 21(2)(a) and (b) are the essence of what is involved in substitute decision making, which requires the exercise of judgement about what the grantor would want the decision to be. The decision about what is in the grantor’s best interests does not only involve a cost-benefit analysis, although there is a version of this in 21(2)(c).
“Best interests” is imbued with considerations of the grantor’s values and beliefs held when capable which the attorney believes the grantor would still act on if capable, and any wishes expressed by the grantor with respect to the treatment despite the fact that these are not prior, capable wishes applicable to the circumstances. For example, they may not be applicable to the circumstances but worthy of consideration because they are indicative of the grantor’s values and beliefs, or they may reflect how the grantor feels about the situation now, even if the grantor is not capable of making the decision due to an inability to understand all of the information necessary or appreciate the consequences of making or not making the decision.
The application of these principles will not be easy in many cases. The persons we love best surprise us sometimes with the choices they make. We don’t always know or agree with what it turns out they want to do. To make the decision for the grantor as the grantor would want, when the stakes may be high and the attorney is also going to be personally affected by the outcome, is challenging for an attorney.
This challenge is often exacerbated by a failure of institutions and health practitioners to inform attorneys about the principles for giving and refusing consent. Sometimes I am consulted by an attorney already in the process of making a decision to give informed consent to treatment. I cannot recall a single occasion on which the attorney had been provided by the health practitioner, hospital or long term care home with a copy of the principles for giving and refusing consent.
My impressions correspond with the findings in a 2014 research paper commissioned by the Law Commission of Ontario,1 in which it was observed that in the substitute decision makers such as attorneys are “sometimes unaware of the principles upon which they are to make health care decisions for incapable patients”.2
In its final report on Legal Capacity, Decision-making and Guardianship,3 the Law Commission took up the authors’ recommendation that the Government of Ontario amend the HCCA in order to create a duty for health practitioners to provide information to all substitute decision makers regarding their roles and duties, as part of the process of seeking consent. The Government of Ontario has not adopted this recommendation, or any other recommendation in the final report.
There’s more to say about the principles for giving and refusing consent and the importance of prior, capable wishes, of course. I’ll return to these in a later blog on the subject of drafting powers of attorney for personal care. For now, whether you act as an attorney, advise an attorney or are seeking informed consent from an attorney, it’s important that you know that the principles exist and what they say.
1“Health Care Consent and Advance Care Planning in Ontario”, Judith Wahl, Mary Jane Dykeman and Brendan Gray
2Supra, at p. 2873 March, 2017 – available online at www.lco-cdo.org. Recommendation 54 is at p. 338