The flood of abortion related news that followed the Supreme Court decision of January 28, 1988, left little space for in-depth reporting on other news items.

In the spring of this year the Nova Scotia legislature passed in third reading The Medical Consent Act.  The following analysis is by Mr. Del Atwood, a Halifax lawyer and member of Nova Scotians United of Life.

On March 8, 1988, the Minister of Health for the Province of Nova Scotia, the Honourable Joel R. Matheson, tabled in the Legislature Bill 20, innocuously entitled An Act Respecting Consent to Medical Treatment.

Innocent on its face, yes – but not in substance.  The declared purpose of the bill belies the benign name:

“The purpose of this Act is to permit a person who is of the age of majority and capable of giving consent to medical treatment or directions respecting medical treatment to authorize another person of the age of majority to give that consent in the future at any time when the person who gave the authorization is no longer capable of giving such consent.”

This is plainly a provision for what is known colloquially as the “living will.”

Living Wills

A living will is a document, much like a power of attorney, in which the maker conditionally relinquishes to a competent appointee certain decision-making powers, in this case regarding the provision of medical care.  To the extent that the provision of such are may in some instances be life sustaining, the living will is a very powerful piece of paper.  Perhaps too much so!

Living wills have ‘been made legally valid in almost 40 states in the U.S.  They have not yet been recognized in Canada, although a private-member’s bill which would have done so – called the Natural Death Act – was passed by the Ontario Assembly in 1977, but never proclaimed.

The principal objection to living wills is that they are poised on the thin edge of the wedge of at least passive euthanasia – that is, mercy killing.

The dangers of the living will are apparent at once; and in Bill 20, they are considerably exacerbated by deficient drafting.

Open to abuse

First of all, the living will is composed in contemplation of illness which might prevent the donor from making informed decisions about his treatment; afflictions of this debilitating type are typically terminal, and the provision of treatment – often described as “extraordinary means” – quite controversial.  But the will need not be made proximately in time to the illness; in fact, the person might be quite well when he signs.

The will thus seeks to take into account “possibilities,” ranging from the likely to the remote, which cannot be predicted easily.  So it is that the powers conferred upon the guardian will be quite broad and ill defined – and therefore open to abuse through misinterpretation.

Even if the will is drafted with precision and detail, one must recognize that the passage of time or the onset of illness might well alter the wishes of the “testator.”  The sentiments expressed in a will, drafted long ago, might no longer comprise the testament for the maker.

Furthermore, continuing scientific advances make it hard to characterize with finality methods of treatment as being “extraordinary” or “medically useless.”  Directions in a living will using phrases like this, which do not take into account changes in the practice of medicine since the time of the drafting of the will, could conceivably have an effect unintended by the drafter.

It is not sufficiently to reply that an outdated will might simply be revoked or amended, as sickness could prevent the patient from expressing his change of mind.

Coming into effect

Second, it is not at all clear from the proposed Nova Scotia statue when a validly executed will would come into effect.

Our Incompetent Persons Act – an unfortunately entitled and anachronistic law which allows a court to appoint a guardian for an “incompetent person” – states that an appointment may be made to administer the person and estate of someone “incapable from infirmity of mind of managing his own affairs.”

Presumably, Bill 20 would see a guardian given power to exercise an authority conferred upon him in a living will when the person who signed the will is unable by reason of infirmity of mind to give a valid consent to medical treatment.

But what are the criteria of “infirmity of mind?”  The opinion of one doctor?  Two?  A committee of physicians?  Even if it is known who is to make the finding of incompetency, it must be recognized that there is not always unanimity among the medical community on when someone has become incompetent.


Third, with what sort of authority would a living will under the new law clothe a guardian?  Must the maker set out specific instructions for his treatment?   Or can he give a plenary decision-making power to his appointee?

Further, the purposive section of the Bill appears to distinguish between “consent to medical treatment,” on the one hand, and “directions respecting medical treatment,” on the other.  Are the two different?

It is important to know, because the empowering provisions of the Bill stipulate that the person to whom an authorization is given is deemed to a guardian only for the purpose of giving “consent to medical treatments,” there being no reference made to “direction respecting medical treatment.”

Might a ‘consent’ be intended to apply to active remedial intervention, and “directions” to include withdrawal of such care?  We cannot say, due mainly to the imprecise language of the statute.  The answers are, quite literally, vital.


Fourth, how is an authorization, once in effect – by whatever criteria – to be supervised?  Most legislation dealing with the guardianship of persons under a disability requires the person in charge to render to a judicial authority an accounting of his office.

This would be crucial under the proposed Act, as nowhere in it are there set out rules for the guidance of guardians in making decisions about the medical treatment of their charges.

Are decisions to rest on the basis of medical opinion?  Or can a direction by the person who made the will override the doctors?  Are the best interests of the patient to apply?  Or the best interests of the family?  Or the community?

In the absence of such clear legislative instruction, it would seem provident to subject the guardian to close, impartial scrutiny; this protection would be absolutely necessary in order to secure to the patient full protection of his legal rights – rights which must be scrupulously guarded whenever a person is left in a position of mute dependency on others for his welfare.


The fifth objection concerns the very issue of impartiality, something the Nova Scotia Bill does not address.

The living will law presently in effect in California – which I do not suggest at all should be a model for our legislators – at least recognizes that certain financial or familial ties to a patient may be impediments to someone acting as a guardian under a will.

It is not that such relationships will of a certainty result in abuse, but that they might, and that the appearance of conflict of interest must be avoided, especially in situations involving life-or-death decisions.  The Nova Scotia law does not recognize such impedimenta; it is a glaring omission.

Sixth, and lastly, comes the question of termination of the authorization. The Nova Scotia law provides that an authorization ends when (1) it is revoked by the person giving it, (2) a court-appointed guardian is installed, (3) a judge orders an authorization revoked.

The last two methods are fairly clear, though not completely.  It is the first that presents the greatest difficulty: must the revocation, just as the original will, also be in writing, or may it be verbal?  What must be the mental state of a person making a revocation for it to be binding?

We must have answers, as one could easily imagine a situation when a dispute over the validity of a revocation leaves a patient’s life hanging in the balance.  In such a case, there might well not be time enough for a courtroom adjudication of the issue.

It is surprising that the provincial government would choose now of all times to bring forward a law such as this.  In the aftermath of last January’s Supreme Court decision in the Morgentaler case, many of us were gratified to hear so many of our elected leaders proclaiming their support of right-to-life values with, I believe, true conviction.

The passage of Bill 20, in its present form, would be a descent from those lofty heights.  And while the unhappy consequences that would surely follow from the enactment of this Bill would be attenuated by the strongly directory provision of the Criminal Code – notably, Sections 12, 197, 199 and 241 – and the Charter of Rights, we are still fixed with the knowledge that no good can come from a bad law.

The Minister of Health would be well advised to send this one back to the drawing board.  Even better counsel would suggest it be erased altogether, and that this one be chalked up to “experience.”