Fries with that Will? Part Five

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ADVANCE DIRECTIVES IN POWERS OF ATTORNEY

A POA with treatment directions in it is not the Grantor’s consent to treatment in accordance with the directions contained.  Rather, those directions are just that: directions to the Attorneys as to whether to give or refuse consent to a specific care plan under the SDA or to a specific treatment or plan of treatment under the HCCA[1]

The advance directive is also important to the doctors, nurses and other health practitioners treating the Grantor when he or she is incapable of giving or refusing consent to the treatment.  Their obligation goes beyond simply identifying the correct substitute decision-maker and obtaining consent to treatment.  They are obliged to ensure consent accords to the principles for giving or refusing consent set out in HCCA s. 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.

“Best interests” is defined, in detail in HCCA s. 20(2).

 

So, an advance directive in a POA that was made while the grantor was capable with respect to that treatment and that applies to the Grantor’s circumstances is supposed to govern consent to treatment.  However, the governing wish is the most recent capable and applicable wish.  Consider the provisions of HCCA s. 5:

(1) A person may, while capable, express wishes with respect to treatment, admission to a care facility or a personal assistance service.

(2) Wishes may be expressed in a power of attorney, in a form prescribed by the regulations, in any other written form, orally or in any other manner.

(3) Later wishes expressed while capable prevail over earlier wishes.

Note that while wishes may be expressed in a POA, they may be expressed orally as well and that later wishes prevail over earlier wishes.  In other words, your client may have a valid POA containing advance directives, but he or she may have subsequently orally revoked the advance directive without affecting the validity of the appointment of Attorneys. 

Attorneys for personal care are in no better position than other substitute decision-makers when challenged by a health practitioner as to the consent they give or refuse.  That is, they are not entitled to say for example, “You cannot challenge our treatment decisions because we are the named Attorneys.”[2]

Advance directives require some specificity if they are to be enforced.  They also require an examination of the context in which they were made, according to the Ontario Court of Appeal in Conway v. Jacques, 2002 CanLII 41558 (ON C.A.).  At paragraph 31 of the judgment for the Court, Justice Sharpe wrote,

[31] At the first stage, the substitute decision-maker must act in accordance with a wish expressed while capable that is applicable to the circumstances.  However, I agree with the appeal judge that prior capable wishes are not to be applied mechanically or literally without regard to relevant changes in circumstances.  Even wishes expressed in categorical or absolute terms must be interpreted in light of the circumstances prevailing at the time the wish was expressed.  As Robins J.A. held in Fleming at p. 94:

In my view, no objection can be taken to procedural requirements designed to determine more accurately the intended effect or scope of an incompetent patient’s prior competent wishes or instructions.  As the Act now stands, the substitute consent-giver’s decision must be governed by wishes which may range from an isolated or casual statement of refusal to reliable and informed instructions based on the patient’s knowledge of the effect of the drug on him or her.  Furthermore, there may be questions as to the clarity or currency of the wishes, their applicability to the patient’s present circumstances, and whether they have been revoked or revised by subsequent wishes or a subsequently accepted treatment program.

The reference is to Fleming v. Reid, 1991 CanLII 2728 (ON C.A.), (C.A.).  While both cases deal with the previously expressed wishes of psychiatric patients regarding treatment with antipsychotic drugs, the principles enunciated apply to treatments generally and to wishes expressed about them.

When a client instructs you to insert a provision in the nature of “no heroic measures,” or, “I don’t ever want to be in a nursing home,” take care.  And take detailed notes because you may have to explain the provision at a Consent and Capacity Board Hearing, or to the Attorneys.

What did the Grantor mean by, “no heroic measures?”  What he or she may consider a heroic measure today may some time down the road be routine or nearly routine treatment: It wasn’t that long ago that a kidney transplant or a coronary bypass was a heroic measure.

And, no one ever wants to go to a nursing home.  But if you insert that provision into the POA, what happens to the moderately healthy but incapable Grantor whose Attorneys are faced with that provision but the alternatives when the decision has to be made are worse?

That was the situation in M. F., Re, 2003 CanLII 14908 (ON C.C.B.), an application to determine whether a previously expressed wish applied to Mrs. F.’s current circumstances:

Mr. C.K. was Ms M.F.’s substitute decision-maker by virtue of a Power of Attorney for personal care she executed in January 2001.  Mr. Summerville prepared it and witnessed it.  At the time it was executed, Mr. Somerville , Mr. C.K. and Ms M.F. discussed her plans for care.  Ms M.F. said she wanted to stay in her home.  That was the capable wish that was the cause of this Application.

 In his evidence, Mr. Summerville said he did not take Ms M.F. to mean that she wanted to stay in her home no matter what happened. The conversation did not go into great detail and Mr. Summerville’s recollection was not precise given the passage of time, but the wish as expressed was not unconditional.  Ms M.F. recognized the prospect that she might need care.  Mr. C.K. said the same thing about his grandmother’s comments during that interview.  He thought that, had it been put to Ms M.F. that she would find herself in her current situation, she would want it remedied.

The Board’s analysis went like this:

Generally, there are three types of wishes one might express regarding a treatment or care decision.  The first arises out of deeply held beliefs, such as the wish of a Jehovah’s witness not to receive a blood transfusion.  The second responds to an imminent extenuating circumstance, such as major and risky surgery.  The third category is a general expression of sentiment in contemplation of an uncertain future.

In the first category, the beliefs underlying the wish are likely to be concrete and therefore precise.  There is likely certainty to the wish and its applicability to the circumstances however far in advance it was made: “Under no circumstances give me a blood transfusion.”

In the second category, the person expressing the wish is anticipating what the near future holds.  In the case of major surgery, a person will have the benefit of medical advice including an assessment of the risks and range of outcomes.  The time frames are constrained. Considerations other than the risks and results of the procedure, such as family and finances, are predictable in the short term, before the vagaries of life have much time to interfere in plans.  The instruction given to a substitute decision-maker is based upon that current information.  Such a wish is therefore likely to be made with certainty and with realistic application to the person’s circumstances.

In the third category, the person expressing the wish anticipates something that, if it does transpire, will take place in the indeterminate future.  Surrounding circumstances may change from the time the wish is expressed to the time it might be applicable.  Life can be unpredictable.

In the first two cases, the wish and the circumstances to which it applies are concrete.  In the third situation, fate might foil the best laid plans.  The legislation qualifies the obligation of a substitute decision-maker to give effect to advance directives by requiring that the wish be applicable to the circumstances.  The wish needs a framework of relevance to the time it might be implemented.

It would be impossible for someone sitting in a lawyer’s office about to execute a Power of Attorney for personal care to anticipate every contingency of future needs.  I think it likely that many expressions, many wishes made at that time, are more intended as philosophical guidelines for the attorney than hard and fast directions to be followed no matter what. Consequently, I am sceptical about the extent to which comments of a general nature addressing unforeseeable contingencies are intended by the legislation to be wishes mandated for slavish adherence.  Such general outlines of preference may, as life unfolds, not be applicable to the circumstances.

Did Ms M.F. make a general statement intended to guide a substitute decision-maker when the unforeseen or the unmentionable occurs or did she express a wish in the sense the legislation uses the word?  Both people who testified as observers to Ms M.F.’s capable wish viewed it as conditional.  Mr. Summerville remembered Ms M.F. expressing a concern about the level of care she might need.  Mr. C.K. agreed.  There was no evidence Ms M.F. had a philosophical or concrete objection to a care facility.  Rather, it seemed she was expressing a general preference to remain in her own home for as long as possible.

The evidence did not show that when she talked about her preferences Ms M.F. anticipated the serious decline in her physical and mental health that transpired.  Mr. C.K. thought that his grandmother, were she able to see into the future, would not have wanted to be left at home in her current circumstances.

As at the Hearing, Ms M.F.’s circumstances included the need for 24-hour supervision, help with her activities of daily living including taking medication, general hygiene, and meals.  She was left alone for long periods of time while her son went out without making provision for Ms M.F.’s meals or bodily functions.  Her family could not manage the level of care and supervision Ms M.F. needed and she could not afford private caregivers around the clock. 

Ms M.F.’s situation represented an affront to her personal dignity as a human being.  Being left alone for hours after an incident of incontinence and being physically unable to respond to that immediate need is but a single example of her situation. 

For these reasons, I held that Ms M.F. had not made a “wish applicable to the circumstances.”  What she said was too vague and her circumstances too likely not within what she was contemplating when she said what she did to be applicable. 

Alternately, if I held the wish applicable to her circumstances, I would have interpreted Ms M.F.’s words to mean, “Let me stay in my own home as long as I am able to manage there with whatever help is available.”  Mr. C.K. already did that and phase two of the wish now must be implemented.

In the year and a half since Ms M.F.’s rapid decline began, it was clear to me that Mr. C.K. did everything possible to maintain Ms M.F. in her home: he had already respected the general preferences expressed by his grandmother. 

Were I wrong in holding the wish not to be applicable to Ms M.F.’s circumstances, I would have authorized Mr. C.K. to depart from it. To paraphrase the legislation, I was satisfied that Ms M.F., if capable, would probably give consent to admission because the likely result of the admission is significantly better than she would have anticipated in comparable circumstances at the time the wish was expressed.


[1] Note that a plan of treatment is defined in s. 2 HCCA to include the withholding or withdrawing of a treatment.

[2]Scardoni v. Hawryluck, 2004 CanLII 34326 (ON S.C.), reversing the CCB Decision on other grounds, paragraphs 67 to 69

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About Mark Handelman, BA, LLB, MHSc (bioethics)

Health Law Matters

m.handelman@sympatico.ca (416) 402-9476

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