Estate planning and planning for the future are sometimes difficult tasks, particularly when it comes to end-of-life planning. When forced to confront their own mortality, many people are hesitant to dive in and make a plan. Unfortunately, this may result in their wishes being unknown if an emergency situation arises.
In Ontario, when a person is incapable of making their own decisions with respect to their care, the Health Care Consent Act (the “HCCA”) and the Substitute Decisions Act (the “SDA”) allow others to make decisions on the incapable person’s behalf. Section 20 of the HCCA sets out a list of persons who may give or refuse consent to treatment on behalf of someone who is incapable to give their own consent at the time. The list of people who may make decisions is as follows:
- The incapable person’s guardian of the person, if the guardian has authority to give or refuse consent to the treatment.
- The incapable person’s attorney for personal care, if the power of attorney confers authority to give or refuse consent to the treatment.
- The incapable person’s representative appointed by the Board under section 33, if the representative has authority to give or refuse consent to the treatment.
- The incapable person’s spouse or partner.
- A child or parent of the incapable person, or a children’s aid society or other person who is lawfully entitled to give or refuse consent to the treatment in the place of the parent. This paragraph does not include a parent who has only a right of access. If a children’s aid society or other person is lawfully entitled to give or refuse consent to the treatment in the place of the parent, this paragraph does not include the parent.
- A parent of the incapable person who has only a right of access.
- A brother or sister of the incapable person.
- Any other relative of the incapable person.
A person included in this list may give or refuse consent only if no person described in an earlier paragraph is willing or available to do so. The SDA, in turn, deals with Powers of Attorney and Guardians.
If you have not taken the time to think through your wishes with respect to treatment and communicate them to others, it is difficult to know whether your substitute decision maker under the HCCA or SDA will make the choice that you would have made yourself, had you been capable. One way of dealing with this issue is by clearly expressing your wishes, such as with a “living will”. The Ministry of the Attorney General describes a “living will” as an expression that is “sometimes used to refer to a document in which you write down what you want to happen if you become ill and can’t communicate your wishes about treatment…[t]he term ‘advance directive’ is also frequently used to refer to such a document.” The Ministry of the Attorney General also notes that you can include your treatment wishes in a Power of Attorney document to ensure that your attorney is aware of them.
Pursuant to the SDA s. 66(3), guardians of the person and attorneys for personal care have a duty to make decisions on an incapable person’s behalf in accordance with the incapable person’s wishes, if known. The guardian or attorney must also use reasonable diligence to ascertain whether the incapable has set out such wishes. Accordingly, it is important to consider including your wishes in your Power of Attorney for personal care and communicating them to your attorney, to ensure that your wishes are known.
Thanks for reading.
Ian Hull and I recently blogged about informed consent in the context of Ontario’s Health Care Consent Act 1996. As discussed in that blog, contrary to widespread belief, there is no age of consent in Ontario. Instead, the principles of capacity (to consent to treatment) are applied, as per s. 4 (1) of the Act, i.e. does the person understand the information that is salient to the decision, and do they appreciate the reasonably foreseeable consequences of a decision or a lack of decision. In short, the concept of maturity is used as the yardstick, rather than chronological age. As a parent, this concept has intrigued me, so I decided to explore this issue further. In doing so, I discovered the journey of a captivating boy named Abraham Cherrix.
In 2005, at the age of 15, Abraham Cherrix was diagnosed with Hodgkin lymphoma. At the time of his diagnosis, Abraham was living with his parents and four younger siblings in rural Virginia. His first round of chemotherapy, as recommended by the doctors at the Children’s Hospital of the King’s Daughters, rendered him feverish, nauseated and so weakened that Abraham’s father had to carry him from the car into the house. When doctors raised the subject of a second cycle of chemotherapy, at higher doses and to be supplemented with radiation, Abraham declined, and his parents echoed his refusal. In lieu of conventional chemo, Abraham and his parents wanted to pursue an alternative herbal treatment (which they had prospected on the internet) called the Hoxsey Method. Having been banned by the U.S. FDA 45 years earlier, and having been deemed by the American Medical Association to be quackery, the Cherrix family sought treatment with the Hoxsey Method at the Bio-Medical Center in Tijuana, Mexico.
By the summer of 2006, the Accomack County Department of Social Services had determined that Abraham was not receiving ‘appropriate life-saving care’. Abraham’s parents were charged with medical neglect and officials took joint custody over the teen and ordered him to report to the hospital for chemotherapy treatment. A last-minute stay was obtained by the family and they regained full custody of their son. A month later, Abraham’s parents were cleared of the charges of medical neglect, and a consent decree was reached under which Abraham was permitted to pursue the Hoxsey Method as long as he was appropriately monitored by a board-certified oncologist, and by the court, until he turned 18.
Abraham’s case sparked a nationwide controversy. No one questioned that Abraham’s disease was both serious and life-threatening. The flame to the kindling: statistics showed that the success rate in curing Hodgkin lymphoma after three rounds of chemo was nearly 90 percent. The key issue that arose from Abraham’s refusal to subject himself to a second round of chemotherapy was this: When is a minor able to make autonomous decisions about his or her own health care; to consent, or refuse to consent to health care treatment on their own behalf? Like most states, the age of majority in Virginia is 18. However, in response to the difficulties faced by the Cherrix family in their wish to pursue an alternative treatment, the Virginia legislature passed a bill on February 23, 2007 called “Abraham’s Law”. This law would allow minors older than 14 to refuse life-prolonging treatments with the agreement of their parents on the condition that such a decision (to refuse medical treatment) is made in good faith and in the child’s best interests.
Abraham is 22 years old now and living in the small town of Floyd, in the Blue Ridge Mountains of Virginia. In January, he learned that the cancer had returned to his left lung.