Legal and regulatory proceedings
Healthcare directives: What you really need to know
Originally published October 2017
One of your patients has suffered a stroke, leaving him with significant physical and cognitive impairment. The family is understandably distraught, but fortunately this patient had previously prepared a healthcare directive, a document you have on file. It means you can provide your patient with the care he needs, confident in knowing who is authorized to make key healthcare decisions when the patient can no longer do so.
When patients authorize another person to make healthcare decisions in the event they become incapacitated, it is important for their physicians to be aware of such authorizations and understand the impacts on their professional obligations. Authorization documents can be called "advance directives," "living wills," or "powers of attorney," among others.1 Each province and territory has rules governing such documents, including requirements for their validity, what may be authorized, and when they come into effect and terminate. Physicians are encouraged to become familiar with the rules in their province or territory.
What’s in a name?
It is easy to get tripped up by the terms used to refer to healthcare directives. "Advance directive," "advance medical directive," and "living will" usually refer to decisions about clinical care. In Ontario, many people are familiar with the term "Power of attorney." What they may not realize is that there are two types—"Power of attorney for personal care" for healthcare decisions, and "Power of attorney for property" for decisions about property and financial affairs.
What is a healthcare directive?
A directive is a legal document through which a capable person gives another individual the authority in advance to make decisions on his or her behalf while alive.2 Typically, it allows the authorized individual to make healthcare decisions when the patient becomes incapable. And, it usually includes instructions that the appointee must follow when making these decisions.
It is important for physicians to carefully review the document to determine the scope of the appointee’s legal authority and any other stipulations or limitations. For example, if two or more people are granted authority to make decisions, the applicable legislation will usually determine the manner in which they must act. Appointees in some provinces3 with the same authority must act together, unless the document stipulates otherwise. In other jurisdictions,4 the first appointee listed is entitled to act alone, followed by the next listed appointee if the first is unavailable, unless the directive stipulates otherwise.
Is the document valid?
Healthcare directives are not required to be in any particular format. They do typically have to be signed, witnessed, and dated. Each province and territory has rules around what requirements must be followed in making a healthcare directive.
The patient must have mental capacity (competence) at the time the document is prepared and signed. Legislation in each jurisdiction may set out a test for determining capacity to grant a healthcare directive. For example, in Ontario a person is capable of giving power of attorney for personal care if they have the ability to understand whether the appointee has a genuine concern for their welfare, and appreciate that they may need to have the appointee make decisions for them.
When should consent be sought from the person authorized under a healthcare directive?
Generally, a healthcare directive comes into effect when the patient loses capacity to make decisions about personal care. The person responsible for determining whether the patient lacks capacity varies depending on the rules in each province or territory and the terms of the directive itself.
For example, in Québec a protection mandate comes into effect once the patient’s incapacity is confirmed by medical and psychosocial assessments and the court has approved the mandate (called "homologation"). In other cases, a qualified capacity assessor must first determine the patient’s capacity before the healthcare directive can be acted upon.5
The patient’s treating physician will often be asked to assess capacity for this purpose. If you find yourself in this circumstance, keep detailed records of your assessment and the clinical grounds for your conclusions. Physicians have sometimes been criticized for failing to have sufficient evidence on which to base their assessment of a patient’s capacity, in particular if relying exclusively on third-party opinions.
If the patient’s incapacity has been properly assessed and there is a healthcare directive in force, the person appointed under that directive is the first person the treating physician should look to for consent on behalf of the patient. In the absence of a healthcare directive, legislation in most provinces and territories sets out a hierarchy of individuals who may provide consent to treatment on a patient’s behalf.
If you are concerned that the appointee is not complying with the patient’s prior expressed wishes or is not acting in the patient’s best interests, discuss your concerns with the care team and the involved parties in an attempt to reach a solution. Document these efforts in the patient’s medical record. If a satisfactory solution cannot be reached, you may have to look for guidance from a hospital ethics committee, or ask the courts6 or the local public guardian or curator to intervene.
The bottom line
Greater clarity in patient care can be achieved through healthcare directives and when physicians understand their purpose and the rules governing them.
- Ask your patients whether they have a healthcare directive. Directives are especially helpful if patients are elderly or when they have a condition that will likely impact their capacity in the near future. Ask patients for a copy of the directive and add it to their medical record.
- When a patient is deemed to be incapable and the healthcare directive comes into effect, review the document carefully. Determine who has authority to consent on the patient’s behalf and whether there are any other restrictions or directions. Verify the identity of the individual(s) named in the document.
- If you are asked to confirm that a patient was capable at the time he or she signed the directive, ensure you have proper authorization to disclose this personal health information.
- If you are asked to assess the capacity of a patient, review the healthcare directive to determine whether it contains directions about how capacity is to be assessed, and then comply with those directions. Be objective in your assessment and keep detailed records. Ensure you have appropriate authorization to share your findings with the requesting party.
- Contact the CMPA if you have questions about a specific healthcare directive and what it means for you.
- Called a "power of attorney for personal care" in Ontario; "personal directive" in Alberta, Nova Scotia, and Northwest Territories; "protection mandate" in Québec; "healthcare directive" in Manitoba, Saskatchewan, New Brunswick, and Prince Edward Island; "advance healthcare directive" in Newfoundland and Labrador; "directive" in Yukon; and "representation agreement" in British Columbia
- This individual is called an "attorney" in Ontario, "mandatary" in Québec, "proxy" in Manitoba, Saskatchewan, Yukon, New Brunswick and Prince Edward Island, "representative" in British Columbia, "delegate" in Nova Scotia, "agent" in Alberta and Northwest Territories, and "substitute decision maker" in Newfoundland and Labrador
- Ontario, British Columbia, and Québec.
- Manitoba, Saskatchewan, Prince Edward Island, and Newfoundland and Labrador.
- Physicians in Québec are guided by the government office of the Curateur public, which keeps a register of persons under homologated protective mandate.
- In Ontario and Yukon, specialized tribunals have been established to address these matters.