Advance Directives (15:VI)

An Advance Directive (AD) is a written document made by a capable adult that gives or refuses consent to health care, in the event that they become incapable of giving health care instructions. The legal provisions for AD’s are set out in Part 2.1 of the HCCFA.

NOTE: As of September 1, 2011, a valid AD executed in accordance with the requirements set out in the HCCFA is legally binding upon health care providers and substitute decision-makers. Prior to this date, an AD was useful in that it expressed the wishes of the adult, but it was not legally binding.

A. Significance of an Advance Directive

The law provides detailed guidelines for how a health care provider is to respond when an AD is in place. The new legislation recognizes a written AD which, when made in accordance with the HCCFA, provides a valid consent on the basis of which health care provider can provide treatment, without involving any substitute decision-maker.

In order to be valid, the new AD must be executed in accordance with the legislation and contain two “informed consumer” acknowledgements in writing to the effect that:

1. The refusal of treatment is binding; and

2. There is no substitute decision-maker.

(See below regarding circumstances where a substitute decision-maker, such as a committee or representative, does exist.)

According to s 19.7 of the HCCFA, health care providers are to rely on the instructions given in a valid AD when:

• The health care provider is of the opinion that an adult needs care
• The adult is incapable of giving or refusing consent to the health care
• The health care provider does not know of any personal guardian or representative who has authority to make decisions for the adult in respect of the proposed health care
• The health care provider is aware that the adult has a valid, binding AD that is relevant to the proposed health care

The health care provider is to make a reasonable effort in the circumstances to determine whether the adult has an AD, representative or guardian. If the adult has both an RA and an AD, then the health care provider must seek consent from the representative. According to s 19.3 of the HCCFA, instructions in the AD will be treated as wishes expressed while capable, which are binding on a representative. However, the health care professional can act on the instructions in an AD without the consent of a representative if the AD expressly states that: “a health care provider may act in accordance with the health care instructions set out in the advance directive without the consent of the adult’s representative.”

The central purpose of an AD is to give or refuse consent to health care. If the adult has given consent in a valid AD, then the health care provider should provide that health care, and need not obtain the consent of a substitute decision-maker. Similarly, if the adult has refused consent in a valid AD, then the health care provider must not provide that health care, and need not obtain the consent of a substitute decision-maker.

It remains necessary for a health care provider to obtain consent from a substitute decision-maker in the following situations:

• If there is a committee of person in existence or a representative under an RA
• If there is a verbal instruction or wish
• If there is a written instruction but it is not in a properly completed AD
• If there is a written instruction from another jurisdiction
• If there is a wish in an AD that is not properly signed and witnessed
• If there is an AD that does not contain the mandatory informed consumer clause

In addition, an AD does not apply in certain circumstances. According to s 19.8 of the HCCFA, a health care provider is not to rely on an AD where:

• Instructions in the AD do not address the health care decision to be made
• Instructions in the AD are so unclear that it cannot be determined whether the adult has given or refused consent to health care
• Since the AD was made, while the adult was capable, the adult’s wishes, values or beliefs in relation to a health care decision significantly changed
• Since the AD was made, there have been significant changes in medical knowledge, practice or technology that might substantially benefit the adult in relation to health care

If a health care provider is not aware that the adult has an AD that refuses consent to specific health care and provides that health care to the adult, but subsequently becomes aware of an AD in which the adult has refused consent, then the health care provider must withdraw the health care.

It is possible for an adult who does not complete an AD to still receive health care. Completion of an AD must not be mandatory prior to providing any good or service (i.e. health care). In other words, an adult has the right to not complete an AD. For example, where an adult is being admitted to a care facility and instructed to “fill out these forms” prior to treatment, the adult does not have to fill out the AD.

In the absence of an AD, if the adult has not appointed a representative, then the health care provider will seek consent from a Temporary Substitute Decision-Maker (TSDM), as set out in s 16 of the HCCFA.

B. Note on Medical Assistance in Dying

The Criminal Code of Canada was amended on June 17th, 2016, to permit the Medical Assistance in Dying (MAiD) under certain conditions. This means that a medical or nurse practitioner may, at the person’s request, administer a substance to cause their death, or prescribe a substance so that the person can self-administer a substance that causes their death.

Consent given through substitute decision makers, such as representatives under the RAA, and Advanced Directives are NOT sufficient for medical practitioners to provide MAiD. MAiD can only be provided to patients who are able to give consent as of July 15th, 2016.

This is because the College of Physicians and Surgeons of British Columbia’s “Professional Standards and Guidelines” regarding MAiD clearly prohibit consent given through ADs and RAs. The Professional Standards and Guidelines have weight in law pursuant to s 5(2) of the Medical Practitioners Regulation under the Health Professions Act.

For more information on the Standards and Guidelines of the College of Physicians, please see their document on MAiD at: https://www.cpsbc.ca/files/pdf/PSG-Medical-Assistance-in-Dying.pdf.

C. Making an Advance Directive

An AD must include or address any prescribed matter and indicate that the adult knows the following:

• A health care provider may not provide any health care for which the adult refuses consent in the AD
• A person may not be chosen to make decisions on behalf of the adult in respect of any health care for which the adult has given or refused consent

For more information, refer to section I. B. 2: Mental Capacity – Health Care Consent in this chapter.

For more information on preparing documents, consult organisations such as Nidus Personal Planning Resource Centre and Registry. Contact information may be found in section II. D: Resource Organizations of this chapter.

D. Changing, Revoking or Ending an Advance Directive

An adult with capacity is able to revoke or change an AD at any time. According to s 19.6 of the HCCFA, an adult who has made an AD may change or revoke the AD as long as the adult is capable of understanding the nature and consequences of the change or revocation.

A change must be made in writing. The amended AD must also be signed and witnessed by two capable adults (unless one witness is a lawyer or notary).

A revocation may be made by expressing an intention to revoke an AD and then making another document, including a subsequent AD. Alternatively, an AD may be revoked by destroying the AD with the intention to revoke it.

E. Examples of Advance Directive Provisions

Examples of directives made in an AD might include consenting or refusing consent to the following:

• CPR (if cardiac or respiratory arrest occurs)
• Artificial nutrition through intravenous or tube feedings
• Prolonged maintenance on a respirator (if unable to breathe adequately alone)
• Blood cultures, spinal fluid evaluations, and other diagnostic tests
• Blood transfusions

Note that it is not likely that simple refusals like “I refuse CPR” are going to be sufficient for health care providers. It is important to describe the circumstances to the best degree possible under which consent will be refused, such as only refusing CPR if cardiac arrest occurs, rather than stating only to refuse CPR. The adult may use the phrase “under any circumstances” to make it clear to health care professionals that consent is not given in any case.

NOTE: The adult should have their AD added to their doctor’s patient files, their hospital records, and any other relevant agencies. If the AD is revoked or altered, the adult should advise each of these agencies or provide them with the new or revised AD.

1. Do Not Resuscitate Orders (“DNR Orders”)

Do Not Resuscitate Orders are a common form of AD which instruct medical professionals not to perform CPR. This means that doctors, nurses, emergency medical personnel, or other healthcare providers will not attempt emergency CPR if a person’s breathing or heartbeat stops. DNR Orders may appear in a patient’s advance directive document.

However, DNR orders can also be made in a hospital or personal care home, and noted on that person’s chart, or be made by persons at home. Hospital DNR Orders tell the medical staff not to revive the patient if cardiac arrest occurs. If a patient is in a personal care home or at home, a DNR Order tells the staff and/or medical emergency personnel not to perform emergency resuscitation and not to transfer the patient to a hospital for CPR.

Each hospital will have its own policies regarding the implementation of DNR Orders, but such policies are guided by the Joint Statement on Resuscitative Interventions (1995) which was approved by the Canadian Healthcare Association, the Canadian Medical Association, the Canadian Nurses Association and the Catholic Health Association of Canada and was developed in cooperation with the Canadian Bar Association. The Joint Statement can be located at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1488016/.

Guiding Principles of the Joint Statement include:

• A competent person has the right to refuse, or withdraw consent to, any clinically indicated treatment, including life-saving or life-sustaining treatment (Principle 3). In this situation, the healthcare professional will discuss with the patient whether the patient wishes to be resuscitated and a notation will be made on the person’s chart.
• When a person is incompetent, treatment decisions must be based on his or her wishes, if these are known. The person's decision may be found in an advance directive or may have been communicated to the physician, other members of the health care team or other relevant people. In some jurisdictions, legislation specifically addresses the issue of decision-making concerning medical treatment for incompetent people; the legislative requirements should be followed (Principle 4).

F. Note on ADs for LSLAP Students

When a client approaches LSLAP for assistance with creating an AD, students should ask the following series of questions in order to ascertain whether LSLAP can assist them:

1. Is the client capable of creating an AD? The presumption is that all adults are capable. The test is the ability to understand and appreciate the meaning of what they are trying to do in this particular case.

2. Why does the client want to create an AD?

3. What types of health care provision does the client want to give consent to?

4. What types of health care provision does the client want to refuse consent to?

5. Does the client have an RA in place? What is the relationship between the client and their chosen representative?

6. Does the client want the representative to be able to give or refuse consent, notwithstanding the AD?

It is common for practitioners to refer the client to their doctor for discussion of the types of health care that the client may want to give or refuse consent to, and to obtain the appropriate wording of an AD from that doctor. Students should discuss this option with the client and consider referring them to their doctor in the first instance.

Students should refer to their Supervising Lawyer if there is any doubt that the client understands and appreciates the AD. Also note that an adult is not required to have an AD as a condition of receiving health care treatment.

If there are concerns that a person may be abused or neglected, or at risk of being abused or neglected, the student should discuss these concerns with the client and provide information and access to appropriate support services (e.g., Seniors Abuse & Information Line at 604-437-1940 or 1-866-437-1940).

Students must also remember their legal responsibility to maintain professional conduct and client confidentiality. If abuse or neglect is suspected, consult with the Supervising Lawyer about how and whether to make a report to the appropriate authority. Refer to section VIII: Adult Abuse and Neglect.

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on June 21, 2019.

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