Advance Care Planning in Ontario: How It Works
Almost every province and territory in Canada has enacted legislation which codifies the right of a capable adult to make arrangements about personal choices for future health care. It is important to recognize, however, that there is great variation in the law from province to province, with some provinces permitting documents which contain health-care directives to provide valid consent to the health-care treatment described in the document and other provinces, such as Ontario, requiring consent to come from a person’s substitute decision-maker, rather than from a document. It should also be recognized that advance care planning does not purport to be - or to replace - consent to treatment, but is a process of planning and expressing wishes that will guide consent decisions made by another person, as outlined below.A brief summary of the Ontario law governing ACP will provide context for understanding the challenges to the process.
Legislative Scheme
In Ontario, two statutes govern consent and capacity to make health-care decisions: the Health Care Consent Act, 1996 (the "HCCA") and the Substitute Decisions Act, 1992 (the "SDA"). Under the HCCA, if a person is capable of consenting to treatment, he or she is required to do so before treatment is provided. Where a person is not capable of making the decision, then consent must be given or refused on that person’s behalf by his or her substitute decision-maker. Every person has an SDM without having to take any steps to appoint one, as the HCCA sets out a hierarchy of decision-makers. The SDA also contains provisions for the appointment of substitute decision-makers, including an attorney appointed pursuant to a power of attorney for personal care. The HCCA sets out rules for decision-making which provide, inter alia, that the SDM must give or refuse consent in accordance with any prior expressed wish that is: applicable to the circumstances; expressed by the incapable person while capable and after attaining 16 years of age; and is known to the SDM. The HCCA also provides that if there is no such wish, or such wish is unknown, or impossible to comply with, the SDM shall act in the incapable person’s best interests, which comprise a range of considerations, including the values and beliefs held by the person while capable and the likelihood of benefit or harm from the proposed treatment.
The legislative scheme outlined above facilitates advance care planning, in that the SDA permits the execution of a power of attorney for personal care and the HCCA provides that the POAPC may incorporate wishes, which will guide (and even bind) the attorney in making decisions on behalf of the grantor of the POAPC in the event that he or she becomes incapable of making a decision.
Regardless of whether a person has executed a POAPC and whether such POAPC incorporates wishes, he or she can engage in the ACP process and develop an advance care plan. This requires simply that the person formulate and express wishes for his or her future health care. The process encourages dialogue between patients/persons, their family, friends, the health-care team but most importantly, the SDM. An ACP document need not be in any particular form. The plan may be oral or written and include information about values, goals and preferences for treatment procedures as well as other information about desired care at the end of life. Ideally, ACP documents should identify the health states that a person would find acceptable and unacceptable, so that an SDM can identify whether the person would want particular measures to be taken in particular circumstances, without any need to identify particular measures that the person would or would not want. An advance care plan only comes into effect upon incapacity.
