This section provides a primer on the principle of patient autonomy and how it relates to the issues raised in the Paper, then gives some real world examples of advance care planning. Our goal in this section is to explain some of the issues, interests and concerns underpinning the law in Ontario, and to provide context for how health care consent and advance care planning relate in practice.
We have also prepared a glossary of key terms, which can be found at the end of this Paper.
A. Balancing both sides of patient autonomy: informed consent and future care wishes
At a high level, Ontario’s legislative scheme governing health care consent and substitute decision-making focuses on balancing the principle of patient autonomy with the need to protect incapable patients.
The genesis of both the SDA and the HCCA can be traced back to the draft legislation prepared by the Advisory Committee on Substitute Decision- Making for Mentally Incapable Persons chaired by Stephen V. Fram, Q.C. The final report of this committee (the “Fram Report”) was released in 1988. The Fram Report noted the conflict between patient autonomy and substitute decision-making, and recommended a model of least restrictive substitute decision-making for incapable adults. The Fram Report also noted a concern that unfettered resort to substitute decision-making would be paternalistic.
Much has been written on the balance between individual self-determination and substitute decision-making. This balance is not the focus of this Paper. Instead, this Paper focuses squarely on the principle of patient autonomy, and on how the two sides of this principle occasionally come into tension.
Patient autonomy is, broadly speaking, the right of individuals to make decisions about their own bodies. As the Fram Report noted, “The traditional democratic concept of liberty involves letting people live as they choose or wish, without interference, so long as they do not break the law or endanger others.”
Courts have held that patient autonomy entails a right to be informed of the risks and benefits of treatment before lawful consent can be given. This is referred to as the doctrine of informed consent, and is fundamentally founded on the idea that capable patients should be given relevant information to make choices about their own well-being. However, patients also have a right to express wishes about the health care they will receive in the future if they become incapable, and to have those wishes complied with in certain circumstances. This aspect of patient autonomy entails a right to pre-plan for future health care, and a limited right to have such plans followed.
Tensions may arise where a patient has expressed a relatively uninformed wish about future health care. For example, a patient may express a wish to receive a particular end-of-life treatment. This wish may be expressed in a factual vacuum, well prior to a relevant diagnosis, and without being given any information about this treatment from a health practitioner (as would be required by law if informed consent were being sought). When a health practitioner is later informed of such a wish having been made at a time prior to the patient’s current incapacity, and the health practitioner is now proposing the particular treatment, what is he/she to do? On one hand, the health practitioner has an obligation to obtain informed consent to treatment – which can no longer be obtained from the patient because they are incapable. On the other hand, patients have a limited right to direct their future care and the physician may be under an obligation to comply with the prior expressed wish.
The common law of Ontario has never provided complete guidance on resolving this tension. The Fram Report did not address changes to the law of informed consent, but instead assumed that the common law of informed consent would continue to apply and recommended transferring the existing requirement to give informed consent from the incapable patient to the SDM. However, the Fram Report also recommended that SDMs be required to make authentic decisions and follow the “intentions” of the incapable patient. Unfortunately, no guidance was provided in the Fram Report on how to address potential tensions between the principle that consent must be informed and the obligation on the SDM to follow the “intentions” of the patient (although mechanisms exist in the HCCA to address these tensions, discussed below).
The Fram Report’s recommendation to transfer decision-making authority to an SDM where the patient is incapable was incorporated in the HCCA, and its predecessor legislation. Under the HCCA, the SDM’s role is to give or refuse informed consent on behalf of the incapable patient, and while doing so give effect to the patient’s prior capable wishes. The SDM’s role is to connect informed consent to treatment with the patient’s future care wishes: informed consent is still obtained, but in giving or refusing consent the SDM must determine whether the patient’s prior expressed wishes are applicable. This is how Ontario legislative scheme balances the patient’s right to direct future care with the requirement of informed consent.
Not all jurisdictions have reached the same conclusion as Ontario on how to balance informed consent with the limited right to direct future care. British Columbia chose to legislatively remove the obligation to obtain informed consent where a health practitioner is presented with patient instructions about future care in an advance directive. Thus in B.C. no balancing is required, no tension arises, and the health practitioner may simply provide or withhold the treatment regardless of whether the advance directive was informed. The health practitioner is not required to obtain a separate informed consent from an SDM.
Readers of this paper should keep this tension, and Ontario’s legislative solution, in mind. Our attempt to find the correct balance between the right of capable patients to direct their future health care, and the right of capable adults to make informed choices, weaves together many of the divergent discussions and critiques presented in this Paper.
We should note that, while advance care planning is conceptually grounded in patient autonomy, current practices in Ontario do not always further this principle. Where a patient expresses wishes about future care without being informed of useful clinical information, and is not given the opportunity to revisit such wishes when the patient’s health condition changes, it is difficult to see how the principle of patient autonomy is being advanced. More emphasis on obtaining informed consent to a plan of treatment would mitigate this concern somewhat, as discussed below.
B. What kind of future care wishes should be solicited?
Closely related to the tension between informed consent and advance directives is the issue of what types of wishes about health care should be solicited from patients. This is a practical question addressing how best to connect treatment decisions with a patient’s wishes, values and beliefs, and asks what will be most useful and informative to:
(a) SDMs in deciding whether to give or refuse informed consent to treatment on behalf of incapable patients; and,
(b) health practitioners in deciding whether to provide treatment to incapable patients in emergencies.
Most importantly, this is a question regarding what types of health care wishes will engender the most authentic decision-making possible. ‘Authentic’ refers to how closely a decision of an SDM (or health practitioner in an emergency) reflects the decision the patient would have made if capable.
We acknowledge that this is largely a question for health care researchers to resolve with the benefit of evidence-based research. Such research is beyond the scope of this Paper. However, as is discussed in this Paper, we do have concerns about the types of wishes that are being solicited from patients in Ontario.
Some of the documents reviewed in preparing this Paper appear to encourage low-quality and uninformed, yet very specific, expressions of prior capable wishes. For example, they encourage the general public to express absolute wishes about dialysis, mechanical ventilation, and cardio-pulmonary resuscitation (“CPR”). They attempt to collect these wishes in the abstract, without contextualizing them within the actual health condition (and likely future health condition) of the patient. This raises concerns that SDMs either will be, or will believe themselves to be, bound to make a decision in accordance with a relatively uninformed wish.
Some of the definitions of standard end-of-life treatments provided to patients in the documents we have reviewed, while not entirely inaccurate, are potentially inadequate. For example, in order to express a useful wish to receive or reject a feeding tube, a patient should be aware that this would involve the placement of a tube in the nose or abdomen. Similarly, it is difficult to imagine that a patient could express a robust wish about CPR without recognizing that chest compressions may result in numerous broken ribs. Yet, some of the documents we reviewed ask individual patients to give these specific wishes absent this knowledge, leaving a signifi