This section sets out the authors’ recommendations to address the issues identified in the immediately preceding section.
A. Guiding Principle: Contextualizing Health Care Decisions
Ontario law is somewhat unique (or at least is near one end of a spectrum) in its emphasis on obtaining consent for proposed treatment from an SDM even where a patient has engaged in formalized advance care planning. “Best practices” and clinical tools cross borders easily and instantly (especially now that they are available on-line), and the proliferation of extra-jurisdictional forms and policies appears to have influenced practices in Ontario. The bottom line is that forms, tools, and policies that may work in many other jurisdictions may be legally incorrect (or incomplete) in Ontario when adopted without revision.
As we have repeated many times in this Paper, with the exception of emergency treatment, Ontario law only allows patient wishes, values and beliefs to be implemented through the law of informed consent to treatment. While some jurisdictions allow advance directives to speak directly to health practitioners (for example, Alberta and Nova Scotia allow health practitioners to take direction from a personal directive where an applicable directive does not appoint an agent), Ontario law favours contextualized decision-making to a greater extent by ensuring that either patients or, if incapable, their SDMs give informed consent before treatment is provided.
The authors do not recommend any changes to this aspect of Ontario law. This law provides an appropriate balance between the interests of the patient in directing future care on the one hand, and on the other hand the risks associated with being confined by inapplicable written wishes, the pitfalls of legal drafting, and the vagaries of future health conditions. Ontario law is also supportive of health practitioners who (with the exception of emergencies) are not required to interpret nebulously drafted legal documents and can take direction from a real-life discussion with an SDM. Health practitioners are also protected from liability where they act reasonably and in good faith upon informed consent for incapable patients given by SDMs.
In our view, Ontario law is sound, but it is not always matched in its application at the front line. The goal of these recommendations is to encourage health practitioners and health care organizations to emphasize contextualized patient decision-making over rote recording and application of wishes, values and beliefs. While there will, and should always be, opportunities for patients to express wishes, values and beliefs about future care, more emphasis should be put on the interpretation of these statements by an SDM as part of obtaining informed consent to treatment. Similarly, more emphasis should be placed on obtaining informed consent to a plan of treatment governing future care related to a patient’s present condition, rather than simply recording the patient’s wishes. These recommendations are discussed in more detail below.
Our recommendations are aimed at encouraging contextualized patient decision-making.
B. First Recommendation: Give Priority to Consent to Treatment
Too often, health practitioners solicit patients to engage in advance care planning when consent to a treatment or a plan of treatment could (and likely should) be obtained. Perhaps for reasons of expediency, health practitioners opt to record patients’ wishes, values and beliefs, rather than have in-depth discussions with patients about their present health problems, the health problems that they are likely to have in the future given their current health conditions, and the future treatments that are available to address these health problems. Moreover, some health practitioners seem not to always give appropriate consideration to the uses that will, and legally may, be made of expressed wishes, values and beliefs in the future.
Under Ontario law, prior expressed wishes, values and beliefs are intended to guide the SDM in giving or refusing informed consent to treatment. Unfortunately, many health practitioners appear not to understand this aspect of Ontario law and believe the recording of advance directives to be a sufficient and complete step.
Where the risks and benefits of treatments connected to the patient’s current health condition are known, it would be preferable for health practitioners to seek consent to or refusal of a treatment or plan of treatment from a patient (or their SDM). In many cases, utilizing the plan of treatment provisions in the HCCA would limit the need to rely upon prior capable wishes in deciding whether to provide emergency treatment. This would, at least conceptually, lead to more authentic decision-making and reduce the stresses associated with treatment decisions made in emergency situations.
Institutional and regulatory policies and practices should encourage health practitioners to seek consent to a plan of treatment to the greatest extent possible before soliciting wishes, values and beliefs. While a process that emphasizes the importance of knowing the general wishes of a patient is important, more education is needed about closing the loop by seeking informed consent to a proposed treatment, rather than relying on wishes alone. While this could also be addressed legislatively, we have decided not to propose legislative reform to address this issue as it is doubtful, based on our learnings here, that legislative reform would address the operationalization of consent at the front line.
For the ease of the reader, we have prepared the below draft language as an example of what might be incorporated into health care organizations’ policies, as well as an example of how this policy might work in practice:
(1) Treatment Related to the Patient’s Present Health Condition
Before initiating a planned conversation with a capable patient to discuss his/her wishes, values, and beliefs in relation to future treatment(s) (also known as advance care planning), a health practitioner shall consider the extent to which future treatment(s) can be governed by an informed consent to treatment (or plan of treatment) relating to the patient’s present health condition.
For any future treatment(s) relating to the patient’s present health condition, a health practitioner shall seek the patient’s informed consent to, or refusal of, such treatment(s) by advising the patient of information about each of the below matters that a reasonable person in the same circumstances as the patient would require in order to make a decision (informed consent or refusal) about the treatment(s):
- The nature of the treatment.
- The expected benefits of the treatment.
- The material risks of the treatment.
- The material side effects of the treatment.
- Alternative courses of action.
- The likely consequences of not having the treatment.
A health practitioner shall also provide responses to any requests by the patient for additional information about the above matters.
Nothing in this policy should be interpreted as limiting the right of patients to express wishes, values and beliefs at any time to guide future care and to have these recorded by health practitioners. This policy is intended to guide health practitioner initiated processes for health care consent and advance care planning.
(2) Treatment Beyond the Patient’s Present Health Condition
Where all available and clinically indicated informed consents and refusals have been obtained from the patient in relation to treatment(s) relating to the patient’s present health condition, a health practitioner may then proceed to solicit the patient’s wishes, values and beliefs in relation to other treatments (i.e. advance care planning).
(3) Summary of Policy
First, discuss treatment(s) relating to the patient’s present health condition and seek informed consent to the treatment(s) or plan of treatment from the capable patient (or if incapable, the SDM).
Second, where informed consent (or refusal) cannot be obtained because treatment(s) to be discussed do not relate to the patient’s present health condition, health practitioners may assist the patient to advance care plan through soliciting the patient’s wishes, values and beliefs. These may only be obtained from the capable patient, not the SDM.