Considerations for Physicians
I. Advantages of the Personal Directives Act:
- stimulates discussion with patients or those close to them, which enables physicians to be better aware of a patient's beliefs, values and preferences, regardless of whether the patient actually writes a personal directive.
- provides clarification of who can speak for the individual, by the appointment of an agent, and if an instructional directive is included, it will give health care providers some directions regarding treatment.
- provision of liability protection (Section 28, Personal Directives Act) for any service provider who acted "in good faith" whilst following the instructions written in the personal directive, or provided directly by the agent, as well as for service providers who provide emergency care without consent to an incapacitated person.
- defines when a directive comes into effect by stipulating the determination of loss of capacity. The procedure for the determination of loss of capacity is "shared" in this Act. Capacity must be assessed by the person(s) named in the directive to do so, after consultation with a physician or psychologist. If no person(s) are named then a physician or psychologist, in concert with another service provider can determine incapacity. A Declaration of Incapacity, Form 1 or Form 2 must be completed.
II. Questions raised by physicians about the Personal Directives Act:
1. Does this law allow assisted suicide or euthanasia?
No, assisted suicide and euthanasia are "illegal" in Canada. If instructions in a personal directive ask for this they are void in law and there is no requirement for service providers to follow the instructions. However, the rest of the personal directive is still valid and must be followed.
2. Will physicians be required by this law to provide treatments that are medically futile?
No, the intent of the law is to extend an individual's existing right to consent, or to deny treatments or services. The physician still has the professional responsibility to propose appropriate medical care.
3. There are some concerns raised by the public that this Act was developed to save money in the health care system, how do I address those queries?
Please allay this concern; any financial benefit to the health care system is a by-product of the legislation, not the intent. Recent research has shown that advance directives and living wills have little effect upon resuscitation decisions and the use of hospital resources.
4. How should concerns about unscrupulous agents be addressed?
The law presumes that the maker of the personal directive chose the person whom he or she felt would best represent his or her wishes. However, the legislation offers safeguards on the agent's authority (limitations) and establishes a 'three part rank order' detailing how an agent can make decisions (Section 14, Personal Directives Act).
Also, if questions arise concerning the capacity or ability of the agent to make prudent decisions, then any person can appeal to the courts. The court appeal would stop decision-making by the agent until after a judgment has been rendered.
An agent must also keep a written record of decisions for a two year period after the agent's authority ceases. This record can be reviewed by the courts.
5. If several people are named as agents, how will conflicts be resolved?
Section 16 of the Personal Directives Act addresses this situation by naming the agent designated first in the personal directive to be authorized to communicate decisions. If each agent has the same authority, then the majority of the agents is deemed to make the decision. In practice ethics committees may be called in to clarify this dilemma. If conflict remains, a court has ultimate authority.
6. The decisions around medical treatment alternatives can be complex. How will people know how to include meaningful instructions for medical procedures with which they are unfamiliar?
Education and consultation with a health care professional will hopefully facilitate clear instructions in a personal directive. Future medical treatments cannot necessarily beanticipated, and the general public will not always understand treatment alternatives. For these reasons an educational campaign will encourage members of the public to consult with physicians to ensure a personal directive contains clear instructions and that treatment alternatives and outcomes are fully understood.
7. By not allowing agents to make decisions about living organ donation, will this Act limit organ donation?
No, this Act is not intended to have a negative effect upon organ transplantation after death. The intent of the Act's stipulations was to protect incapacitated persons from agent's consent to donation of their organs while 'living,' unless consent is specified by the maker in the personal directive. An organ donation card is only applicable after a patient's death, at which time a personal directive is no longer in effect.
8. Why was a registry not established to facilitate the quick and easy access to personal directives?
Alberta Health did not recommend a registry. However, there may be private ventures introduced similar to various agencies in the United States. Notice of Personal Directive wallet card is available from the Provincial Health Ethics Network and also in the government's educational booklet A Guide to Writing Your Personal Directive. It is important to raise awareness that a person has a personal directive and where copies are kept.
9. What does "reasonable effort" mean in reference to attempting to notify the agent?
The Act does not define reasonable effort, as the common law definition changes with the circumstances of each individual case. If the medical treatment cannot "wait" while trying to contact the agent, then the Act provides protection for the health care professional.
10. If I am not aware of a personal directive or an agent is there a risk of "assault and battery" charges for providing services?
Emergency care can be provided to an individual who lacks capacity without consent (Section 24, Personal Directives Act). There is a continuing duty to inform the agent or nearest relative that the emergency treatment has been provided. Essentially, if the health care providers do not know of the existence of a personal directive, the practice reverts to the status quo.
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