This section explores how advance care planning through instructional directives fits into the law of Ontario and concludes that (with the narrow exception of emergencies) patient wishes, values and beliefs can only be given effect by health practitioners through informed consent to treatment.

This section does not focus on advance care planning through the designation of a proxy decision-maker, as that subject is relatively clear in Ontario: patients can appoint an attorney pursuant to a power of attorney for personal care under the SDA.

 

A. Wishes, Values and Beliefs

One of the purposes of the HCCA, expressed in section 1(c)(iii), is “to enhance the autonomy of persons” by requiring that “wishes with respect to treatment, admission to a care facility or personal assistance services, expressed by persons while capable and after attaining 16 years of age, be adhered to.”[127]

Rather than have a formalized mechanism for directly giving effect to advance care plans through health practitioners, the HCCA focuses on the role of the SDM giving informed consent to treatment and prescribes certain principles and guidelines that must be followed by the patient’s SDM when making decisions on behalf of an incapable patient.[128] In providing these guidelines, the HCCA refers to the patient’s expressed wishes, values and beliefs, and draws subtle distinctions between the legal effects of each. 

The term “wishes” is not defined in the HCCA. Instead, the HCCA contains a clause broadening the scope of the phrase “wishes” beyond its use in common language, and providing some guidance on how multiple expressed wishes are to be prioritized:

Wishes

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

Manner of expression

(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. 

Later wishes prevail

(3) Later wishes expressed while capable prevail over earlier wishes.[129]

While the HCCA permits the incorporation of a prescribed form for the expression of wishes by regulation, this has not been done. 

As noted above, the genesis of both the SDA and the HCCA can be traced back to the Fram Report, which contained the following draft legislative clause related to patient wishes:

The Guardian [which for the purposes of this provision included an SDM for health-care] shall make decisions on the incapable person’s behalf in accordance with the intentions the person had before becoming incapable, and shall take into consideration the incapable person’s wishes, if those intentions and wishes can be ascertained.[130]

Interestingly, the word “intentions” in the above quote did not survive into the equivalent provisions of the current legislation. Instead, the word “wishes” stands for both statements that must be followed by the SDM and statements that have to be considered by the SDM under the HCCA. In appearing before the Ontario Standing Committee on Administration of Justice in 1991, Mr. Fram was asked about the term “wishes” and explained:

Mr Fram: We were searching around for a word. People in all of this medical literature have been searching around for a word. If you use the word “want,” it is something connected with “will,” and if you have “intentions” — each of those terms gives rise to its own problems. The term “wish” is that form of instruction that can come up when people talk about their lives with each other. It is the conversation you have with your intimate friend when you say: “Gee, I’ve just watched Betty’s grandmother deteriorate. If that happened to me, here’s what I would want to happen and not happen.”

It is an interesting word because it is that level of explanation of what we expect, we hope will happen to us if certain things take place. It is an interesting word, but it is the closest we have to that kind of concept of when we explain ourselves to our intimate friends.[131]

As set out in the above quote, “wishes” appears to have been left intentionally flexible and informal.

As previously noted, Ontario’s current legislation provides that wishes can be expressed in any form, including orally, and also provides that later expressed wishes will prevail over earlier expressed wishes. As such, a written document prepared with the help of a lawyer expressing capable applicable “wishes” can be nullified by any later applicable oral statements made by a patient while capable. For example, imagine a scenario where a patient has attended at his lawyer’s office to execute a power of attorney for personal care containing an instruction that he does not want CPR under any circumstances. If, after executing the power of attorney for personal care and on his way out the door, the patient orally states to the lawyer’s receptionist “but I do want to be resuscitated if I experience a cardiac or respiratory arrest during surgery”, this latter oral wish will trump the earlier formally expressed instruction in the power of attorney for personal care – but only with respect to resuscitation during surgery.  As will be seen below, this is a commonly misunderstood aspect of Ontario’s legislative scheme, with the result that health practitioners are sometimes biased towards the written word when a document is in conflict with oral statements later recounted by an SDM or other witness.

In Ontario, where the patient has expressed “wishes” when capable that are “applicable to the circumstances”, the SDM is required to act in accordance with those wishes (subject to an application to the CCB to depart from those wishes, discussed above).[132] Where applicable wishes were expressed at a time when the patient was incapable, or where those expressed wishes are not “applicable to the circumstances” yet are “with respect to the treatment”, they must be considered by the SDM in determining the incapable patient’s best interests.

The HCCA draws a distinction between expressed ”wishes” and the “values and beliefs” the patient held when capable and that the SDM believes the patient would still act on if capable. There is no definition of “values and beliefs” in the HCCA, and there is no statutory guidance on how these values and beliefs are to be interpreted – except that the SDM must believe that the patient would still act on them. There is similarly no standard system for recording or documenting values and beliefs under the HCCA. The HCCA requires that the SDM consider the patient’s values and beliefs as part of determining the patient’s best interests.

 

B. The Substitute Decision-Maker as Interpreter 

Under the HCCA, prior expressed wishes, and the values and beliefs of the patient, are not directly acted upon by the patient’s health care team (with the exception of emergencies). Rather, the SDM serves as an interpreter, responsible for determining if prior wishes expressed by the patient are “applicable in the circumstances” (and must be followed) or merely were expressed “with respect to the treatment” (and must be considered along with values and beliefs and other factors as part of determining whether the proposed treatment is in the incapable patient’s best interest). Absent an application to the CCB by a health practitioner to determine if the SDM is complying with his/her obligations under s. 37 of the HCCA, or an application by the SDM for directions, the SDM is the legal interpreter of the effect of prior statements made by the patient – this includes interpreting whether the patient was capable at the time the statement was made, and whether these statements are expressions of wishes or reflect the values and beliefs held by the patient.

This is not to say that health practitioners should blindly accept decisions made by SDMs. To borrow an example from our health practitioner consultations, one health practitioner recounted an incident where an SDM claimed that a persistently unconscious patient suddenly sat up in bed and experienced a lucid and capable moment during which he expressed wishes applicable to future health care. The SDM recounted that the patient then returned to his previous state without anyone else witnessing this event. The health practitioner explained that from a clinical perspective, the occurrence of such a moment of lucidity was extremely unlikely. In the opinion of the authors, this health practitioner was not obliged to blindly follow a decision of the SDM based on this questionably expressed wish. Health practitioners still have an important role in considering whether the SDM is complying with his/her obligations, and deciding whether to bring a Form G application under s. 37 of the HCCA.

Importantly, the SDM cannot express new wishes, values or beliefs on behalf of the incapable patient and as such, cannot advance care plan on behalf of the patient. The SDM can only interpret and apply expressions of wishes and the patient’s values and beliefs in giving or refusing consent to treatment or a plan of treatment on behalf of the incapable patient. SDMs may also recount prior capable wishes expressed by the patient to health practitioners, which can be relied upon by health practitioners in providing or withholding treatment to an incapable patient in an emergency. SDMs have no other authority to control or restrict treatment provided to the patient under the HCCA, and most certainly cannot do so based on their own wishes or preferences. As will be seen below, the role of the SDM is construed quite differently in Ontario, in contrast to the law of other Canadian and international jurisdictions.

The Fram Report proposed that, with the exception of emergencies, prior expressed statements by patients would be acted upon and interpreted by the patient’s SDM, and not the patient’s health practitioners. The Fram Report apparently considered and rejected the option of having physicians make decisions on behalf of patients, except in emergencies. In the words of the Committee:

The central policy issue that the Committee has addressed in considering substitute consent to medical and psychiatric treatment is whether it is better to provide for a near relative to consent to treatment for a person whom a physician believes is incapable of giving consent, or to provide that only emergency treatment be given without the consent of a court appointed guardian. The Committee considered and rejected the option of dispensing with consent for treatment of a mentally incapable person when two or more physicians provide a written opinion that the treatment is needed and therapeutic. The providers of services should not be asked to determine the value of their services to the life of an individual.

In coming to a decision, the Committee considered the issue from a number of perspectives. It considered the question of intrusiveness. Consent given by a near relative under a statute would be less disruptive to an individual’s life and less intrusive than a court application…