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 he or she becomes 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 when significant amendments were made to the HCCFA, 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 advance directive 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 advance directive 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; and
• 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, 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.

However, 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; or
• 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; or
• 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 health care facility and instructed to “fill out these forms” prior to treatment, the adult does not have to fill out the AD. Students should make their clients aware of this right to refuse to complete an AD and will still be eligible to receive health care treatment.

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.