A. Review of Regulatory Policies and Publications
1. College of Physicians and Surgeons of Ontario (CPSO)
The CPSO is the organization tasked with regulating physicians in Ontario. The CPSO has prepared numerous policy documents to provide guidance to physicians, and which can be enforced through the CPSO’s internal disciplinary and quality assurance processes.
We located two policies that are relevant to this research project: Consent to Medical Treatment, Policy 4-05 and Decision-making for the End of Life, Policy 1-06.
The CPSO policy on Consent to Medical Treatment sets out the general law on consent to treatment, providing care in emergencies, and capacity to make health care decisions (including the rights information that must be provided to persons found incapable with respect to treatment). As a plain language explanation of Ontario law, there are no significant issues with this policy that are relevant to this research project.
The CPSO Policy on Decision-making for the End of Life (the “End of Life Policy”) was prepared to “assist physicians in providing medically and ethically appropriate care to patients at the end of life.” The majority of this policy appropriately focuses on the patient’s right to consent to treatment. In its section on “Advance Care Planning,” the End of Life Policy provides that “patient’s advance care instructions and wishes are reassessed with the patients or substitute decision-makers, and family if there is consent, on an ongoing basis” [emphasis added]. Later, in discussing whether CPR and other life-sustaining treatments should be proposed, the Policy states:
Physicians should recognize that decisions concerning resuscitation and other life-sustaining treatments might change over time. These decisions should be reassessed whenever it is appropriate to do so; in particular, when the condition of the patient changes and when the patient or substitute decision-maker indicates that he or she has changed the decision about such treatment. [Emphasis added]
In short, physicians are reminded to continually communicate with patients or their SDMs and family, if there is consent, as the patient’s condition changes. This reminds physicians that just because a patient or an SDM has given an informed consent to treatment or a plan of treatment that the physician is not locked into that decision when the patient’s condition has changed. However, as this paragraph is under the section on “Advance Care Planning” and refers to re-assessing advance care plan “wishes”, this may lead physicians to confuse advance care plan wishes (which must always be given by a capable patient, never by an SDM) with informed consent for a proposed treatment (given by either a capable patient or his/her SDM). It appears to suggest that SDMs can advance care plan on behalf of incapable patients by expressing new wishes or altering previously expressed wishes, values and beliefs.
As a more general comment, the Policy does not draw a distinction between different types of end of life communications and decisions, such as:
(a) expressions of “wishes” by the patient;
(b) recounting of prior patient “wishes” for future treatment by the SDM to the treating team;
(c) expressions of new wishes for future treatment (i.e. wishes not previously expressed by the patient) by the SDM (which are of no legal effect); and,
(d) consent to a “plan of treatment” for future treatments by either the patient or, if incapable, their SDM.
The legal effect of each of the above items is different (or non-existent) under Ontario law. For example, while an SDM can recount prior expressed wishes of a patient to a treating health care team to be relied upon in an emergency (and in assessing whether the SDM is complying with his/her obligations under the HCCA), any expression of new wishes by the SDM cannot be given legal effect. However, an SDM is able to give or refuse consent to a plan of treatment governing future care, provided that this plan of treatment complies with the requirements in the HCCA (e.g. the plan of treatment is contextualized in the patient’s current health condition and informed consent is obtained). As a guidance document, the End of Life Policy should be clear that physicians cannot give effect to new wishes expressed by SDMs, that an SDM’s primary role is to give or refuse consent and not advance care plan for the incapable patient, and should distinguish between consent to treatment and advance care planning through soliciting patient wishes.
Similarly, in its discussion of the role of the physician in determining whether CPR and other life-sustaining treatments will be provided to a patient, the Policy suggests that physicians should consider a patient’s goals, values and beliefs in determining whether to propose CPR and other potentially life-sustaining treatments. The problem with this suggestion is that, under the HCCA, the task of interpreting a patient’s wishes, values and beliefs is left to the patient’s SDM. This policy, if read to suggest that physicians should pre-screen the treatments proposed for incapable patients based on their interpretation of the patient’s wishes, values and beliefs, could inadvertently lead to the statutory role of the SDM being bypassed.
In the authors’ view, the HCCA creates a statutory role for the SDM as the interpreter of an incapable patient’s wishes, values, and beliefs at first instance. The SDM’s role is to contextualize the patient’s wishes, values and beliefs, based on the patient’s then current health condition and the information provided by the patient’s physicians. In order to fulfill this role, SDMs must obtain complete information from health practitioners about proposed treatment options. In our view, the HCCA would not permit pre-screening treatments proposed to the SDM based on the health practitioner’s interpretation of prior expressed wishes of the patient. The End of Life Policy should be clarified to reflect this fact.
2. Canadian Medical Protective Association (CMPA)
The CMPA is a national organization that provides medico-legal liability protection and advice for physicians. Almost every physician in Canada is a member of the CMPA. The CMPA makes a variety of educational materials available on its website. As part of this research project, we located three documents to be reviewed: an article entitled “End-of-Life care – Support, comfort, and challenging decisions” a document entitled Consent: A Guide for Canadian Physicians, and relevant passages from the Medico-Legal Handbook for Physicians in Canada.
The article entitled “End-of-Life care – Support, comfort, and challenging decisions” states that it is written by physicians for physicians, and that one of the purposes of this document is to provide guidance for physicians faced with difficult clinical situations. Under the heading “Advance Directives” the article provides as follows:
The healthcare provider may wish to defer taking direction from the document, particularly where there is any uncertainty, without first speaking to the patient (if capable) or the substitute decision-maker. Advance directives are to be interpreted by the patient’s substitute decision-maker. The substitute decision-maker is generally obligated to follow these directions, unless he or she has knowledge of the patient’s other express wishes… 
The opening sentence is potentially problematic in Ontario, because unless an advance directive meets the test for consent to a plan of treatment, it cannot be acted upon directly (except in an emergency), and must always be interpreted by the patient’s SDM. While the above passage correctly notes that advance directives must be interpreted by an SDM, it suggests that in some circumstances (without specifying what these may be) a physician may act upon an advance directive without first consulting an SDM.
This passage could also be interpreted as suggesting that a physician may act on an advance directive for a capable patient. If a patient is capable, under Ontario law the physician must never rely on an advance directive (unless it is an emergency and the capable patient cannot communicate). The health practitioner must instead speak directly with the patient to obtain consent. This article could be improved by drawing a distinction between wishes, values and beliefs, and distinguishing between consent to future treatments and advance care planning through expressing wishes, values and beliefs.
In fairness, we should note that this is a national document that expressly states it is not providing medical or legal advice and recommends that physicians should be generally familiar with an applicable legislation in their particular jurisdiction. However, it may contribute to some of the confusion around health care consent and advance care planning we have identified in this Paper.
Both the document entitled “End-of-Life care – Support, comfort, and challenging decisions” and the document entitled Medico-Legal Handbook for Physicians in Canada contain a nearly identical version of the following passage (the below is from the Handbook):
While it is undisputed that a physician must respect any known wishes of a patient not to receive a particular procedure or treatment, it is less clear whether a patient (or the appropriate substitute decision-maker) has a positive right to demand that a specific form of treatment be given, even though the physician may disagree.
The first clause in the above sentence is worthy of comment. This clause could be interpreted as stating that a physician must, in all circumstances, respect any known wishes of the patient. This is not a complete statement of Ontario law. In Ontario, it is the responsibility of the patient’s SDM to consider known wishes to determine whether they are applicable and must be followed, except in an emergency. Immediately following the above quote, the Handbook goes further and states:
However, recent case law demonstrates a trend to give greater weight to the views of the patient and the substitute decision-maker (usually the family) regarding end-of-life decisions. Thus, for example, cultural and religious considerations of the family may well influence treatment decisions, or at least the timing of the same.
The problem with this additional passage is that it appears to apply to both treatments proposed by the physician and treatments not proposed but requested by the patient’s SDM. For treatments proposed to the SDM by a physician, it is potentially misleading to state that the “views” of the SDM are given “weight”. Subject to an application to the CCB, the SDM decides whether proposed treatments will be provided to the patient. This paragraph could be improved by drawing a distinction between input by the patient and SDM into which treatments a physician should propose for the patient (a decision that is ultimately the physician’s to make), and the patient or SDM’s choice of which proposed treatments to consent to.
Similarly, both the Medico Legal Handbook for Physicians in Canada, and Consent: A Guide for Canadian Physicians contain the below statements that could contribute to physicians misinterpreting Ontario law:
Medico Legal Handbook for Physicians in Canada
Legislation exists in most provinces and territories that specifically empowers a patient to execute an advance directive as to future care in the event the patient later becomes incapacitated or unable to communicate such wishes. An advance directive may contain explicit instructions relating to consent or refusal of treatment in specified circumstances, sometimes referred to as a living will. [Emphasis added]
Consent: A Guide for Canadian Physicians
It is now possible in the majority of provinces for a patient to execute an Advance Directive as to future care in the event that the patient becomes incapacitated or is unable to communicate his or her wishes. Advance Directives are sometimes referred to as living wills. Advance Directives may contain explicit instructions relating to consent or refusal of treatment in specified circumstances.… Again, physicians will want to be generally familiar with any applicable legislation in their particular jurisdiction.
In the absence of a valid Advance Directive or duly authorized substitute decision-maker, strictly speaking only the court or someone appointed by the court may properly consent to or refuse medical treatment where the patient lacks the requisite capacity to make the decision. Unfortunately, the legal procedure for the appointment of a guardian of the patient can be lengthy and expensive. As a result, and from a practical standpoint, physicians have often proceeded on the basis of the family’s approval where the medical treatment is clearly required, where the patient’s condition may deteriorate if not treated promptly, and the treatment is determined to be in the patient’s best interests… [Emphasis added]
Both of the above passages, but particularly the Medico Legal Handbook for Physicians in Canada, suggest that there is consensus (or near consensus) among Canadian provinces on the effect of an advance directive. However, the effect of an advance directive varies significantly across Canada, particularly when compared with Ontario. The quoted passages’ use of the language “advance directive” and “explicit instructions,” which could be misinterpreted to mean that an advance directive is an instruction directly to the physician.
More importantly, Consent: A Guide for Canadian Physicians equates the effect of an advance directive with a consent from an SDM, suggesting that a physician need not obtain substitute consent where he/she has obtained a valid advance directive. As an explanation of Ontario law, this is incomplete, and potentially incorrect.
Lastly, Consent: A Guide for Canadian Physicians uses the phrase “duly authorized decision-maker,” which could be misinterpreted as meaning that an SDM must take an active step in order to be authorized to act, which is not correct in Ontario if the SDM is a family member listed in the hierarchy set out in the HCCA. As described below, this is a common misconception that arose in our focus groups.