What happens when someone changes his or her mind about medical care after preparing a power of attorney? A recent article in the Law Times by Judy van Rhijn highlights some concerns surrounding this issue.
In Ontario, in most circumstances, doctors must obtain consent from a patient before administering treatment. When the patient is not mentally capable of providing consent, medical practitioners must look to that person’s substitute decision-maker to make a choice on the incapable person’s behalf. By preparing a power of attorney for personal care, an individual can appoint someone to be his or her substitute decision-maker and can provide written guidance as to what decisions should be made in different circumstances.
Ontario’s Health Care Consent Act, 1996 dictates that a substitute decision-maker is to make choices in accordance with the person’s wishes, if known to him or her and if expressed while the individual was capable and over the age of 16. If not known, the decision is to be made in accordance with the incapable person’s best interests.
A power of attorney for personal care operates by naming an individual to act as substitute decision-maker, but also by recording in written form the grantor’s wishes.
The Act provides that wishes can be expressed in a power of attorney, but can also be expressed in writing in any other written form, orally, or in any other manner. Subsection 5(3) of the Act sets out that later wishes, if expressed while capable, prevail over earlier wishes.
The difficulty, therefore, is what to do when the person has recorded their wishes in a power of attorney, but then subsequently advises a doctor differently. The doctor may want to rely on wishes expressed to him or her, often out of context, rather than abide by the choice of the substitute decision-maker, who is legally responsible for giving or refusing consent once the person has lost consent.
As with many difficult problems, communication is the key. This article reminds us that attorneys for personal care should continue to discuss wishes with the grantor over time. It is important to understand the grantor’s wishes as they evolve and change with the circumstances.
Better communication between the legal professions and the medical professions is needed as well, so that each can understand their distinct roles in the process, as they continue to be clarified by the courts. Ultimately, doctors will need to learn a little bit about the law in order to better serve their patients, and lawyers will need to learn a little bit about medical care in order to better help their clients plan for incapacity.