A. Introduction

This section provides a national and international overview of the laws and structures governing health care consent and advance care planning outside Ontario. Within Canada, we examined four provinces: British Columbia, Alberta, Nova Scotia and Saskatchewan. Outside Canada, we studied England, Queensland (Australia), Hawaii (USA), Oregon (USA), and Texas (USA). We chose these jurisdictions for a variety of reasons, including: language (these jurisdictions speak and write in English, and their statutes are readily available in English); similar legal systems; and varying size (in terms of both geography and population). We were also aware that some of the jurisdictions we reviewed had noteworthy laws and/or approaches to health care consent. As examples, we knew that British Columbia had a unique model in which an advance directive was equivalent to consent, that Hawaii provided an example of a state that had adopted the model Uniform Health Care Decisions Act, and that England gave a great deal of authority to health practitioners to make treatment decisions for incapable patients.

The purpose of the comparative literature review was to analyze different legal models to explore how they differ from the laws of Ontario, to determine if foreign legislation could offer possible reforms for Ontario, and to consider how these models may contribute to persistent misunderstanding of Ontario’s health care consent and advance care planning laws.

It is beyond the scope of this Paper to provide an exhaustive review and analysis of the laws and practices of these jurisdictions. We have not summarized all aspects of the law of health care consent and substitute decision-making in these jurisdictions to avoid unnecessary detail and length. As a notable example, we have not summarized the law of emergency treatment in each jurisdiction, as this is not the focus of our analysis in Ontario. Furthermore, we acknowledge that there may well be gaps between what is outlined in legislation and what happens in practice in other jurisdictions, as is the acknowledged experience in Ontario.

For ease of comparison, our explication of the law of each other jurisdiction is summarized under the following headings:

  1. Is there a statutory provision setting out the requirement to obtain informed consent?
  2. Is there a statutory mechanism for creating an advance directive?
  3. What is the legal effect of an advance directive?
  4. Who interprets and applies the advance directive?
  5. Is there a legal distinction between an ‘advance directive’ and other informal expressions of wishes, values and beliefs?
  6. Who makes decisions for an incapable patient who has not appointed a proxy?
  7. How are disputes resolved?

As set out below, many jurisdictions address the relationship between advance care planning and health care consent through an analytical and legal framework that can be contrasted to that of Ontario. In all of the jurisdictions we reviewed, there is a general requirement to obtain informed consent before treatment is administered.


B. British Columbia

1. Is there a statutory provision setting out the requirement to obtain informed consent?

The British Columbia Health Care (Consent) and Care Facility (Admission) Act generally requires that consent be obtained before treatment is administered, and presumes that patients will be capable[151] of giving, refusing, or revoking consent to health care:

Consent rights

4 Every adult who is capable of giving or refusing consent to health care has

(a) the right to give consent or to refuse consent on any grounds, including moral or religious grounds, even if the refusal will result in death,

(b) the right to select a particular form of available health care on any grounds, including moral or religious grounds,

(c) the right to revoke consent,

(d) the right to expect that a decision to give, refuse or revoke consent will be respected, and

(e) the right to be involved to the greatest degree possible in all case planning and decision making.[152]

The British Columbia legislation also requires that, before attempting to obtain consent from an SDM or providing treatment in an emergency, the health practitioner must make every reasonable effort to obtain a decision from the adult.[153]

As in Ontario, the British Columbia legislation prescribes that consent must relate to the particular health care proposed to the patient, and sets out the information that health care providers must provide to patients in order for that consent to be lawful:

Elements of consent

6 An adult consents to health care if

(a) the consent relates to the proposed health care,

(b) the consent is given voluntarily,

(c) the consent is not obtained by fraud or misrepresentation,

(d) the adult is capable of making a decision about whether to give or refuse consent to the proposed health care,

(e) the health care provider gives the adult the information a reasonable person would require to understand the proposed health care and to make a decision, including information about

(i) the condition for which the health care is proposed,

(ii) the nature of the proposed health care,

(iii) the risks and benefits of the proposed health care that a reasonable person would expect to be told about, and

(iv) alternative courses of health care, and

(f) the adult has an opportunity to ask questions and receive answers about the proposed health care.[154]

 

2. Is there a statutory mechanism for creating an advance directive?

While many of the provisions regarding consent to treatment in the Health Care (Consent) and Care Facility (Admission) Act are similar to the provisions of the HCCA, one important difference is that in British Columbia, an “Advance Directive” is a formal legal document. The British Columbia statute specifically provides a mechanism for patients to give directions about future health care, and requires that these directives be in writing.[155]

Interestingly, the Health Care (Consent) and Care Facility (Admission) Act does not contain a provision permitting an adult to appoint a proxy decision-maker as part of creating an advance directive. Instead, patient appointed proxy decision-making in British Columbia is dealt with under the Representation Agreement Act.[156] Under the Representation Agreement Act, an individual may appoint a representative to make, or help the individual make, decisions in the event he/she becomes incapable of making decisions independently.[157] Depending on the terms of the representation agreement, the representative may also make all health care decisions for the individual under the Health Care (Consent) and Care Facility (Admission) Act if the individual is incapable.[158] The Representation Agreement Act also allows individuals to appoint monitors to determine whether representatives are complying with their health care decision-making obligations (monitors are mandatory for representatives handling finances).[159]

In making, or helping the patient to make, health care decisions, the Representation Agreement Act provides:

16 (1) A representative must

(a) act honestly and in good faith,

(b) exercise the care, diligence and skill of a reasonably prudent person, and

(c) act within the authority given in the representation agreement.

(2) When helping the adult to make decisions or when making decisions on behalf of the adult, a representative must

(a) consult, to the extent reasonable, with the adult to determine his or her current wishes, and

(b) comply with those wishes if it is reasonable to do so.

(2.1) Subsection (2) does not apply if

(a) a representative is acting within authority given to the representative under section 9 [a section providing for some of the powers that may be given to a representative], and

(b) the representation agreement provides that in exercising that authority the representative need only comply with any instructions or wishes the adult expressed while capable.

(3) If subsection (2) applies but the adult’s current wishes cannot be determined or it is not reasonable to comply with them, the representative must comply with any instructions or wishes the adult expressed while capable.

(4) If the adult’s instructions or expressed wishes are not known, the representative must act

(a) on the basis of the adult’s known beliefs and values, or

(b) in the adult’s best interests, if his or her beliefs and values are not known.[160]

Where a patient has both an advance directive under the Health Care (Consent) and Care Facility (Admission) Act and has appointed a representative with authority to make health care decisions under the Representation Agreement Act, the statements expressed in the advance directive are treated as “wishes of the adult, expressed while capable” to be considered by the representative, unless the patient has stipulated in the representation agreement that the health care provider may comply with the advance directive without consent from the representative.[161]

Interestingly, under the Representation Agreement Act, even where an advance directive is treated as prior capable wishes, the representative will still have an obligation to:

(a) consult, to the extent reasonable, with the adult to determine his or her current wishes, and

(b) comply with those wishes if it is reasonable to do so.[162]

Current incapable wishes will trump prior capable wishes where it is reasonable to do so, unless the representation agreement provides that the representative need only comply with capable wishes.[163] We should note that a representation agreement may be drafted with more limited authority, with the result that an advance directive will continue to apply.

The Representation Agreement Act incorporates the test for best interests under the Health Care (Consent) and Care Facility (Admission) Act for health care decisions made by representatives.[164]

 

3. What is the legal effect of an advance directive?

Under British Columbia law, an advance directive under the Health Care (Consent) and Care Facility (Admission) Act is equivalent to consent to treatment a