Advance Directives

As of September 1, 2011, an advance directive is legally binding pursuant to the amended Health Care (Consent) and Care Facility (Admission) Act. An advance directive is a document in which an adult sets out instructions giving or refusing consent to health care, to be used when the adult is incapable of giving instructions at the time the health care is required. For example, an adult may refuse blood transfusions in an advance directive on religious or other grounds.

Generally, any interference with a person’s body without that person’s consent constitutes the tort of battery. Under the law in British Columbia, a health care provider is not permitted to provide health care to an adult without the adult’s consent (consent is defined to be a voluntary, informed decision about the specific proposed health care), except under limited circumstances, including:

  • an authorized substitute decision maker gives substitute consent on the adult’s behalf;
  • there is no authorized substitute decision maker available in an emergency situation where it is necessary to provide the health care without delay in order to preserve the adult’s life, to prevent serious physical or mental harm or to alleviate severe pain, and the adult is, in the health care provider’s opinion, incapable of giving or refusing consent;
  • informed consent is not required for triage or preliminary examination if the adult indicates the desire to be provided with health care, or if the adult is unable to provide such indication, the adult’s relative or close friend indicates he or she wants the adult to be provided with health care.

An adult may make an advance directive if the adult understands its nature and effect, and through the advance directive may give or refuse consent to most (but not all) types of health care.

If a health care provider is aware the adult has an advance directive relevant to the proposed health care, the health care provider:

  • may provide health care to the adult if the adult has given consent to that health care in the advance directive; and
  • must not provide health care to the adult if the adult has refused consent to that health care in the advance directive.

A health care provider is required to make a reasonable effort in the circumstances to determine if the adult has an advance directive.

If a health care provider provides health care to the adult unaware the adult has an advance directive refusing consent to the specific health care and subsequently becomes aware of the advance directive, the health care provider must withdraw the health care.

An advance directive does not apply, and a health care provider is not required to follow its instructions, if the health care provider reasonably believes that:

  • the instructions in the advance directive do not address the health care decision to be made;
  • the instructions in the advance directive are unclear;
  • since the advance directive was made, the adult’s wishes, values or beliefs in relation to a health care decision have significantly changed; or
  • since the advance directive was made, there have been significant changes in medical knowledge or technology that might substantially benefit the adult in relation to the health care addressed in the advance directive. The adult may exclude this ground in the advance directive and instruct that the advance directive applies despite medical advances.

The advance directive must be signed and dated by an adult and two witnesses, all present together at the same time (only one witness is required if the witness is a lawyer or notary public). The following persons may not act as a witness:

  • a person who provides personal care, health care or financial services to the adult for compensation, or a spouse, child, parent, employee or agent of that person;
  • a person under the age of 19;
  • a person who does not understand the type of communication used by the adult, unless the person receives interpretive assistance.

The adult may change or revoke the advance directive if the adult is capable of understanding the nature and consequences of the change or revocation.

While an advance directive is useful in communicating instructions directly to health care providers when you are incapable of doing so, you are unlikely able in an advance directive to address all types of health care that may arise requiring consent. Appointing a representative in a representation agreement to make health care decisions on your behalf gives more flexibility for decision-making based on your wishes and the circumstances at the time. The difference between an advance directive and a representation agreement is that an advance directive instructs the health care provider directly, whereas a representation agreement authorizes another person to instruct the health care provider on your behalf.

Contact Jennifer Chew of DuMoulin Boskovich LLP for your legal needs.

jchew@dubo.com

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