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The Commission first noted a concern regarding substitute consent to medical treatment in its 1991 report on Self-Determination in Health Care (Living Wills and Health Care Proxies), and encountered it again during its recent consideration of issues related to the withdrawing and withholding of life sustaining treatment. Accordingly, the Commission has undertaken this study of the issue to follow shortly on the publication of our final report on Withdrawing and Withholding Life-Sustaining Treatment, and the two reports should be considered complementary.
At common law, every person has the right to consent to, or to refuse, medical treatment. If a person is unable to give consent or refuse, for whatever reason, only a limited number of "substitutes" may do so on their behalf. If it is not an emergency, and the patient has not already appointed someone (or had someone appointed by the court) to make such decisions on their behalf, only the court (or, in some circumstances, the Public Trustee) may do so.
Existing Manitoba legislation allows competent persons over 16 years of age to appoint a substitute decision maker, but it appears that few people take advantage of this option. This fact raises serious concerns relating to the autonomy, security, and bodily integrity of patients, as well as the professional integrity and liability of professionals who have to decide from whom they will accept instructions to treat, or refuse to treat, patients who do not have a legally authorized substitute decision maker.
This report focuses on two specific issues: (a) the possibility of codifying the common law of consent to medical procedures; and (b) authorizing substitute consent to medical procedures in circumstances that existing legislation does not address.
Canadian common law gives a high degree of protection to an individual's personal security and bodily integrity. It is a basic principle of the common law that every person has the right to be free from unwanted interference or touching, including medical treatment, and no one may administer treatment to a person contrary to the person's wish, even where it may be necessary to preserve their life or health. This right is so fundamental that it is entrenched in the Constitution Act, 1982.
At common law there are four pre-requisites to a valid consent:
The common law also permits treatment to be provided without a patient's consent in an emergency, where the health care provider is not aware of any contrary wish having been expressed by the patient when he or she was capable of refusing consent. Adults are presumed to be competent to grant or refuse consent, and in Manitoba this presumption has been extended by statute to apply to anyone over the age of 16. With respect to children under the age of 16, the common law has developed the "mature minor rule," which provides that a minor who has a full appreciation of the nature and consequences of medical treatment may consent to (or refuse) that medical treatment.
At common law, only a court-appointed guardian or the court itself, under its parens patriae jurisdiction, can consent to or refuse treatment on behalf of an incapable adult patient.
Manitoba's existing legislation sets out the parameters for substitute decision making with respect to persons with mental disorders, persons with a mental disability, and persons who have executed a health care directive. Unlike a number of other Canadian jurisdictions, Manitoba has not otherwise enacted legislation that either codifies or supplants the common law with respect to substitute decision making.
Over the last 15 years Ontario, British Columbia, Prince Edward Island, and the Yukon Territory have enacted legislation that codifies the common law of substitute consent and provides mechanisms to determine who has authority to provide substitute consent for incapable patients. Model legislation stipulating substitute consent mechanisms also exists in the United States, where a number of states have enacted either the model legislation or legislation which deals with the same subject matter. In the United Kingdom, health care providers may generally proceed with treatment without obtaining substitute consent in most circumstances, so that the need for such legislation does not exist.
The present state of the law in Manitoba is unsatisfactory, as health care providers are daily faced with situations in which the only options for obtaining a legally valid consent, or refusal of consent, to treatment are either seeking court approval or asking the court to appoint the Public Trustee as a committee of personal care and property. Neither of these options is generally practical, as a result of which health care providers tend to rely on family members to provide substitute consent. This has implications for liability for the health care providers, and also means that people who have not prepared advance health care directives are being deprived, to some extent, of their right to self-determination.
Of the possible options for improving this undesirable situation, the Commission is persuaded that the preferred one is to enact legislation that will deal with identified gaps in the present law and standardize provisions relating to substitute consent contained within existing legislation. This could best be accomplished by amending The Health Care Directives Act and renaming it The Consent to Treatment and Health Care Directives Act.
Although there are arguments in favour of following the approach adopted by Ontario and some other jurisdictions and codifying the common law relating to substitute consent, the Commission believes that to do so would unnecessarily inhibit the evolution of the common law. Instead, the Commission recommends that the Department of Health undertake a co-ordinated campaign of providing such relevant information to patients, health care providers and others, as has been done in the United Kingdom.
The existing definition of "capacity" as it relates to consent varies from statute to statute, and it would be preferable for it to be standardized as well as clarified, as has been done in Ontario and Prince Edward Island.
The heart of any legislative substitute consent regime, of course, is a ranking of potential substitute decision makers, and the Commission recommends the adoption of a modified version of the ranking presently found in The Mental Health Act. The modifications would permit patients orally to designate a substitute decision maker (other than a long-term health care provider), and would also permit a trusted friend with close knowledge of the patient's wishes to provide substitute consent.
Apart from being the highest-ranked person on the statutory list, a person must meet certain criteria before they can act as a substitute decision maker. The Commission recommends that these criteria be standardized in the various Acts and that they incorporate some innovations to ensure that in every case the most appropriate possible person makes health care decisions on behalf of an incompetent patient. One such innovation would permit persons to identify other persons whom they do not wish to make health care decisions on their behalf.
Where disagreements arise among persons who are equally entitled to make a substitute health care decision, the Commission recommends that a decision of the majority be effective and, if no majority is possible, that the eldest person be given authority to decide.
Substitute decision makers should be under the same restrictions as to the type of treatments (or the withholding or withdrawal of treatment) to which they may consent as proxies are at present. The legislation ought also to provide guidance to substitute decision makers as to how they ought to make their decisions. This guidance should be based on the existing guidelines in The Health Care Directives Act, but with explicit assistance in determining what is in the patient's "best interests". This guidance should apply equally to all substitute decision makers regardless of which legislation they are acting under. Substitute decision makers should also be required to consult with other interested persons.
The Commission also considers that the entitlement of substitute decision makers to personal health information of the patients on whose behalf they are to make decisions should be clarified.
Finally, the Commission recommends that consideration be given to the implementation of an expeditious review and appeal mechanism for patients or other interested persons who are dissatisfied with, for example, a finding of incompetence.
Report #110,
October, 2004
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