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.