Canadian Medical Association Journal 1996; 154: 576-578
Advance directives and living wills are explicit directions for physicians to follow if a person becomes incapable of consenting to treatment. Some distinctions between these terms should be clarified.
A living will is a formal document drawn up by a competent person to exercise personal autonomy in future situations in the event of incompetency. It allows people to make clear statements about the treatment or procedures they want should terminal illness or an accident render them unable to consent. A living will may include the name of a substitute or proxy decision maker, as well as actual treatment directives.
An advance directive may be included in or attached to the living will. It is generally used to limit treatments that may be provided for a particular existing condition or one that might develop; in some cases it may give the person's consent to specific treatments. This formal document is usually prepared using medical terms so that the information will make sense to physicians. (An advance directive may not be used to request a lethal dose of any medication, however.)
Depending on the jurisdiction, today's living wills may or may not be legally binding on physicians. Ontario is the most recent province to put new laws in force to recognize a person's right to name a substitute decision maker and to identify preferred (or refused) treatments in the event of future incapacity, especially in the course of terminal illness.
In Ontario's new law, the formal document related to health care is referred to as a "power of attorney for personal care." The legislation also provides for another area of decision making: the continuing power of attorney for property. If there are different substitute decision makers for these two areas, they may need to be linked in some way to support decisions that relate to matters affecting both, such as housing.
A power of attorney for personal care, formally recognized under Ontario's Substitute Decisions Act, is a legal document in which one person gives another authority to make personal care decisions on his or her behalf in the event the person becomes incapable of giving informed consent. Another Ontario statute, the new Consent to Treatment Act, will recognize the authority of the person named as attorney for personal care. (In this sense, an "attorney" or "proxy" is not necessarily a lawyer.) The act deals with personal decision making concerning treatment decisions in the context of health care. Under this statute, "personal care" includes health care, nutrition, shelter (including living arrangements), clothing, hygiene and safety.
The act establishes procedures for a physician or other health care practitioner to follow if the patient is believed to be incompetent to give informed consent to proposed treat- ment. It also directs the physician to the acceptable substitute decision maker for treatment of patients incapable of making decisions on their own.
[In November, the Ontario government announced that it intends to amend the Substitute Decisions Act and Consent to Treatment Act to make it easier for family members or others to act on a patient's behalf. -- Ed.]
Although the Ontario legislation is the most recent of these reforms, other provinces have or are about to have similar changes in consent and decision-making statutes.
British Columbia's new legislative package, four statutes designed to deal with adult guardianship and related issues, received royal assent in July 1993 and will come into effect in 1996. It will provide for the naming of a substitute decision maker for health care and other personal matters, and also permit people to give detailed instructions on how the substitute decision maker should act.
The main statute in this BC approach is the Representation Agreement Act. It recognizes the need for living wills and will permit competent adults to designate the person they wish to make decisions on their behalf -- about health care, personal care or financial matters -- in the event of incapacity. The BC government is expected to prescribe a standard-form agreement.
Alberta's proposed Bill 58 (the Advance Directives Act) died on the government's order paper in 1994. A new version is being developed and is scheduled to go back to the legislature soon.
Manitoba adopted its Health Care Directives Act in 1993. Under it, Manitobans have the right to provide advance written instructions on wanted or unwanted medical treatment should they become unable to decide or communicate for themselves, and proxies (substitute decision makers) can be named to see that these wishes are carried out.
In Nova Scotia, recent legislation allows competent adults to authorize another adult to give consent to treatment on their behalf in the event future circumstances prevent the person from doing so.
The newly revised Civil Code of Quebec allows a person to prepare a directive called a "mandate" in advance of future incapacity. This reform came into force in 1994, and confirms that a person has the right to accept or refuse medical care.
Newfoundland has passed the Advance Health Care Directives Act to allow residents to prepare a document setting out instructions or general principles regarding health care treatment. It also permits the naming of a proxy to make decisions on a person's behalf in the event of incapacity. This legislation came into force July 1, 1995.
Prince Edward Island has introduced Bill 48, the Consent to Treatment and Health Care Directives Act, to provide the following: the basic right of consent for the patient, a definition of valid consent and protection against liability for physicians if proper consent has been obtained. The proposed legislation sets out requirements for substitute consent when the patient is unable to provide it. It also allows capable people to make a directive, including naming a proxy decision maker and providing health care instructions that should be used if the person becomes incompetent. When passed, this legislation will apply to many health care practitioners, including physicians, nurses, dentists, physiotherapists, occupational therapists, psychologists and pharmacists.
There are similarities and differences in these new statutory approaches to health care decision making. Some jurisdictions require that the documents be validated by the court before the named proxy or decision maker can consent on the other's behalf. Some must be witnessed. And some provide direct instructions to the health care professional, while others speak to the substitute decision maker.
Physicians should become familiar with other aspects of the statutes, especially the definitions they offer. For example, definitions will be provided for capacity, incompetence, health practitioner, treatment and emergencies. Physicians should also be aware that there may or may not be specific forms for these directives.
On the important issue of protection from liability, physicians should not take these documents for granted. Keep in mind the following points:
The CMA summary (see CMAJ 1992; 146: 1072A) states: "The CMA holds that the right to accept or reject any treatment or procedure ultimately resides with the patient or appropriate proxy. This includes the right to accept or refuse resuscitative as well as other life-saving or sustaining measures should they become medically indicated. Furthermore, under certain circumstances it may be appropriate for a patient to indicate to the physician and other relevant people, by means of an advance directive, whether he or she wants such resuscitative measures taken should the need arise. . . .
"If an advance directive is specific to a particular set of circumstances the directive will have no force when these circumstances or ones essentially similar to them do not exist. On the other hand, if an advance directive is so general that it applies to all possible events that could arise it is usually too vague to give any usable direction to the physician. In either case physicians will have to rely on their professional judgement to reach a decision."