Ontario MPPs would be prudent to learn from U.S. experience when they consider Bill 108, Substitute Decisions, and Bill 109, Consent to Treatment Act. Living Wills and Substituted Judgment in the United States directly threaten the lives of many handicapped people as well as the old and the “unwanted.” Today, many people are afraid.
The Association for Persons with Severe Handicaps (TASH), reacting to this fear, passed a resolution opposing the “approaches now taken…which authorize third parties exercising substitute judgment to decide “on behalf” of an incapacitated person – that it would be in the best interests of that person to die rather than live with a disability.” (November 1986) Other groups which have issued similar statements include the Association for Retarded Citizens (ARC), in October 1986, and the United Handicapped Federation, April 1986. There are many instances to prove that the fears of the disabled and others as well founded. Ontario should beware.
Howard Hampton, the Attorney General introduced Bill 108 and said that it was “closely integrated with the Consent to Treatment Act.” This is far from true: there are many places where one Bill contradicts the other.
Bill 108, Section 47(9) states: “The power of attorney is not effective until it is validated in accordance with Section 49. And Section 49 lays down the rules and lengthy procedure for validation, witnesses; documentation’; the role of the advocate; the Public Guardian and Trustee. These rules appear to protect the person, but the Consent to Treatment Act, Bill 109, Section 13(1), has different and contradictory laws: “Instructions with respect to treatment…in a power of attorney given under Substitute Decisions are valid even if the power of attorney has not been validated under the Act and remain valid even if the power of attorney is terminated by…the attorney’s death, incapacity or resignation.”
Section 13(1) of Bill 109 also contradicts another section of Bill 108 – Section 51(1) which states: “A power of attorney for personal care is terminated: (a) when the attorney dies, becomes incapable or resigns, if the power does not provide for the substitution of another person, or if no such person is able and willing to act.” How many people granting a power of attorney to a trusted friend, for possibly life or death decisions, will know that under another Act that power does not die with the friend, but continues on with others, unknown?
Another threat, not disclosed in Bill 108, is contained in the Consent to Treatment Act, Section 7, Subsection (1) says, reasonably, that an incapable person can recover the ability to make his own health decisions once the physician decides he is capable again. However, and here is the danger, Subsection (2) says that Subsection (1) does not apply if the person has signed a power of attorney and this has been validated. Thus, Joe Blow, who has granted a validated power of attorney, has an accident and is in a coma during which time the attorney makes the decisions. Joe makes a complete recovery, but finds that according to Bill 109, he has lost the right to make his own health decisions. Question: Does the physician need the permission of the attorney before he can treat the perfectly competent Joe?
Property is more stringently protected than life and health by Bill 108. A person must be 18 years old “to exercise a power of decision” regarding property, but for life and health 16 years is ruled sufficient. It is possible that a Grade 11 student (no other qualifications needed) could over-rule the advice of a famous surgeon and deny permission for life-and-health-saving surgery.
The truth is that the two Bills would allow euthanasia and (a fact acknowledged in a Globe and Mail editorial) assisted suicide. Both are crimes in Canada. The Criminal Code is within the jurisdiction of the Federal Government and beyond the power of any province. Bills 108 and 109 are long, complex, full of contradictions and discrepancies; and a threat to all the people of Ontario. They should be withdrawn now.
