st people have contemplated what might happen to them if they were injured in a car accident and ended up in a coma. Geoff Cauchi completes the second part of his series on the role Ontario’s new Consent and Treatment legislation would play should this situation arise and suggests that you shouldn’t sign a Power of Attorney without proper pro-life medical and legal advice.

Apart from the issue of consent to treatment for children and parental rights, the Substitute Decisions Act, 1992 and the Consent and Treatment Act, 1992 will also have important implications for the care and treatment of incompetent adults.

Most people have contemplated at one time or another what might happen to them if, for example, they were injured in a car accident and ended up in a coma.  I know I have. Who would be there to make decisions for me about my medical care and treatment, and what kind of care and treatment would I get.

At one time, families were assumed to be the ones in the best position to make decisions on behalf of a loved one who was incompetent or incapacitated, and the common law reflected a confidence in their ability and natural inclination to act in the patient’s best interest.

State intervention in this process was only warranted and permitted where the state was able to prove abuse of the venerable person by family members. Historically, all our provincial child-protection statutes, for example, incorporated the profound respect for family autonomy.

The legislation on the other hand, breaks new ground because it reflects a general lack of confidence in families, and a corresponding medical establishment.  It presumes essentially that every family is capable of abusing its venerable members, and makes even the most caring families jump through hoops to keep the government and medical establishment from interfering with their attempts to act in the best interests of their loved ones.

The legislation will also for the first time give legal recognition to documents known as “Living Wills” or “Advance Directives” and Power of Attorney for Personal Care.

Advance Directives are statements, oral or written, made in advance of need, regarding preferences for medical care. The term “living will” is usually associated with a signed, witnessed declaration or directive instructing a physician to withhold or withdraw medical treatment from its signer if he or she is unable to make decisions about medical treatment.

Durable or continuing powers of attorney for personal care are documents that appoint another person to make certain health care and medical treatment decisions for you in the event you become incapable of making such decisions for yourself. They are called “durable” or “continuing” because they are intended to survive the mental incapacity of the grantor.

Combined Durable Powers of Attorney for Personal Care/Advance Directives are documents which combine a power of attorney with instructions with restrict the discretion of the attorney for health care decisions, but directs the attorney not to consent on his or her behalf to any act or omission which constitutes euthanasia.

The Consent to Treatment Act Makes a patient’s health practitioner the sole judge of the patient’s capacity. In May 1992, Dr. John Craven, Associate Director of the Psychosomatic Program at the Toronto Hospital, told a seminar at the hospital that many people who have both physical and mental problems want to stop treatment for their physical disease be allowed to die. He said: “They see the future as dismal and hopeless, but those same people change their minds when their depression or acute anxiety is treated. It is tragic if they are allowed to die for lack of a simple (mood-altering) treatment.”

Craven went on to say that with today’s focus on living wills and the debate over physician-assisted suicides, doctors must not be too quick to believe patients who say they want to be allowed to die. Health care professionals must make every effort to determine whether their despair stems from a treatable mental disorder. (Toronto Star May 9,1992). Under the Consent to Treatment Act, a health practitioner who is a stranger to the family could accept at face value a vulnerable family member’s instruction to withhold food and water and life-saving antibiotics and judge that person “capable” of giving that instruction. Family members have no right to be informed of the health practitioner’s judgment of capacity and there is no procedure in the Consent to Treatment Act by which the judgment could be challenged. The people most likely to know the patient best, therefore, would be denied the opportunity to demonstrate the role that a depressive illness or depression may have been played in prompting the patient to give the instruction.

In the above circumstances, a family member could apply to the Court to be appointed the person’s guardian of the person under the Substitute Decisions Act, s. 55, and, if successful, then instruct the health practitioner to start feeding the patient, but this course of action would be practical only if the family could somehow discover that the judgment of capacity had taken place and process the court application before it was too late.

Assuming the family could not stop the “non-treatment” and the patient dies, it may find its efforts to seek legal redress against the health practitioners from liability for errors in judging the capacity of patients.

If a Health Practitioner forms the opinion that a person 16 years old or older is incapable in respect of a treatment and thinks that he may need someone else to make decisions with respect to treatment on his behalf of an ongoing basis, the Health Practitioner may notify the Public Guardian and Trustee of the matter, and if he does, he must give a copy of the notice to the patient. There is no obligation on the Health Practitioner to inform other family members. This process does not apply, however, if the person has a guardian of the person appointed under the Substitute Decisions Act with authority to consent to the treatment, or an attorney for personal care under a power of attorney that confers that authority and which has been validated under the Substitute Decisions Act.

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The Public Guardian and Trustee has a duty to investigate and allegation that a person is incapable of personal care that serious adverse effects are occurring or may occur as a result. If the Public Guardian believes prompt action is required, he must apply to the court for an order appointing him or her as the incapable person’s temporary guardian of the person. Notice of the court application must be served on the person’s attorney for personal care, but there is no duty to give notice to any family members:

1. A Guardian of the person appointed under the Substitute Descissions Act with authority to consent to the treatment or an attorney for personal care under a power of attorney for personal care under a power of attorney that confers that authority of which has been validated under the Substitute Decisions Act. These persons could be anyone other than a health care provider, as long as they are at least 16 years of age.

2. An Attorney for personal care (as above) where the power of attorney has not been validated under the Substitute Decisions Act.

3. The person’s representative appointed by the Board under the Consent to Treatment Act to give or refuse any other person at least 16 years of age can apply for a representative to be appointed. S. 29 does not apply if the person has a guardian appointed under the Substitute Decisions Act or a “validated” attorney for personal care: s.29(7) Consent to Treatment Act.

If the health practitioner looks to a family member for consent for a proposed treatment, and the family member refuses consent, the Health Practitioner can override this refusal if he believes that the family member is not complying with his duties as a substitute decision-maker set out in the act and the patient is at risk if the treatment is not administered. This “override” is not available if the family member is the patient’s guardian of the person, representative, or attorney for personal care with authority to make decisions relating to the treatment.

It becomes clear from the foregoing review the families can strengthen their autonomy vis-à-vis the state and the medical establishment if their individual adult members appoint other trustworthy family members as their attorneys for personal care, as defined in the Substitute Decisions Act, and treatment, as defined in the Consent to Treatment Act. It must be remembered, however, that there is nothing anyone can do to stop the court, on the application of any person, from terminating the attorney’s authority and appointing someone else as the patient’s guardian of the person. A hospital or the Public Guardian and Trustee might be inclined to make such an application if the attorney is alleged to have breached his duties under the Substitute Decisions Act, which are outlined in ss. 66 and 68 [duties which are similar to those imposed on other substitute decision-makers in the Consent to Treatment Act, s. 13]. Although the court is required to “consider” the “closeness of the applicant’s personal relationship to the incapable person,” and the family members have a right to notice of the hearing of the application, this does not mean that it cannot appoint an “outsider” as guardian. Once appointed, the guardian becomes the highest ranking person on the list of potential substitute decision-makers, higher tute decision-makers, higher than any family member, and any existing power of attorney is terminated.

An attorney is required to follow any wishes or instructions the patient expressed, orally or in writing, before becoming incapable, if the attorney knows of them, as long as the instructions do not involve an illegal act or omission. This means that Ontario law will enforce instructions given to patients, perhaps unwittingly, to withdraw food and water from them in circumstances where the patient will die of starvation or thirst, rather than the injury or disease which triggered the use of the power of attorney/advance directive. S.45 of the Substitute Decisions Act implies that “nutrition” is part of “personal care,” and “treatment” as defined under s.1 of the Consent to Treatment Act (“anything done… for a health related purpose . . . including a course plan of treatment”) is certainly broad enough to encompass food and water.

The right to refuse food and water has been recognized as common law. The common law has also recognized the right to patients to refuse any form of medical treatment, even if it is routine [e.g., insulin for diabetics, common antibiotics for those suffering from pneumonia]. If the attorney wants to override a patient’s expressed wish that consent to a proposed treatment be refused, he can apply to the Consent and Capacity Review Board for permission to consent to the treatment notwithstanding that previously  expressed wish. However, if such an application fails, an attorney may be compelled by law to either co-operate in killing the patient by neglect, or resigning his position.

Some may wish to take comfort from a statement in the government’s instruction booklet on the Substitute Decisions Act to the effect that instructions to do something which is currently illegal, such as administering a lethal injection, would not be binding on the attorney. It may appear that the government is willing to draw the line at active euthanasia. However, Canadians should take a lesson from the American experience in this area.

Currently, almost every state in the United States has passed living will type legislation. Some states initially enacted provisions which allowed health practitioners to disregard instructions in living wills that food and water be withdrawn from the patient.

Through the lobbying efforts of “Right to Die” groups, these provisions were eventually removed.

Promoters of “Aid-in-Dying” – the deliberate killing of a patient by lethal injection or drug overdose – are now lobbying vigorously for amendments to existing living will laws in various American states that would add this option.  Recent attempts have failed in Hawaii, California, Washington, and Oregon, but pro-euthanasia activists are unlikely to give up trying. They have always seen legal recognition of the “living will” as merely the first necessary step along the way to legal recognition of euthanasia – a springboard for future advances.

The Ontario legislature’s omission for the “aid in dying” option in the Substitute Decisions Act is borne more out of an acceptance of the legal fact that a Province cannot negate the federal criminal code provision against active euthanasia that out of any kind of anti-euthanasia sentiment. A change at the federal level could very well lead to future changes in this provincial legislation.

If the patient’s wishes or instructions expressed while capable are not known, or it is impossible to comply with them, the attorney must make the decision in the patient’s “best interests.” In deciding what are his “best interests,” the attorney must consider the values and beliefs he knows the person held when capable and believes the person would still act on if capable, as well as the person’s current wishes, if they can be ascertained.

In a case decided by an Arizona court in 1987 (Rasmussen v. Felming), the court added that it could not determine what an incompetent patient would really want. However, the court went on to reason essentially that the patient’s “right to privacy” was broad enough to encompass a fundamental right to refuse treatment and care, including food and fluids, one she could not lose even though she was incompetent the court then concluded that a decision had to be made for her in her “best interest,” which the court decided was that she not to be fed.

It is quite conceivable that this court’s interpretation of “best interests” could find its way into Canadian Law. However, it would seem that the new Ontario law gives a pro-life person the opportunity to influence how his “best interests” will be interpreted by communicating to the attorney his pro-life values and beliefs. The most obvious way to do that is to express them clearly and forcefully in a combined Power of Attorney for Personal Care/Advance Directive. The purpose of such a statement of values and beliefs would be to ensure that the traditional ethical principles are applied in situations that are not foreseen and therefore not adequately dealt with in any specific instructions that have been given.

A full discussion of what Ontarians can do under the new legislation to protect themselves from being euthanized by the government agency, unscrupulous health practitioners, and, yes, even untrustworthy family members, is beyond the scope of this article. The legislation has both pitfalls and to be avoided and optional checks and balances to be seriously considered, and embraced or rejected after a thoughtful weighing of their respective advantages and disadvantages.

Should you make arrangements to design your own combined durable Power of Attorney for Personal Care/Advance Directives? Yes. Should you sign one without proper pro-life medical and legal advice? Probably not.