Legal framework and description
Advance medical directives are a way of expressing one’s wishes in anticipation of incapacity to consent to care deriving from the Act Respecting end-of-life care.
Specifically, advance medical directives are contained in a written document in which a person of full age who is capable of giving consent to care specifies in advance the medical care that they will agree or refuse to receive in the event that they become incapable of giving consent to care in specific clinical situations.
Only persons who are of full age and capable of consenting to care can issue advance medical directives. They can do so:
- Through the Advance Medical Directives in Case of Incapacity to Consent to Care form prescribed by the Ministry;
- or by a notarial deed, which contains the same information as the advance medical directives form.
Advance medical directives have the same value as wishes expressed by a person capable of giving consent to care. If an incapacitated person has issued advance medical directives, the doctor is not required to obtain authorization from the person who can consent to care on the patient’s behalf (their representative). Advance medical directives are binding, which means that health professionals that have access to them are obliged to comply with them.
A person can modify or revoke the wishes expressed in their advance medical directives at any time.
Consent to care
Before administering any treatment to a patient, a health professional must obtain the patient’s consent, that is, their authorization. The health professional must give the patient sufficient information to enable them to make a decision and thus freely give their informed consent to the treatment. “Informed consent” means consent given with full knowledge of the facts, and “freely given” means given willingly, of one’s own accord.
Capacity to consent to care
When a decision has to be taken about a person’s health, health professionals always ask the person whether they agree or refuse to receive the appropriate treatment. The decision falls to the patient provided that they have the capacity required to consent to the treatment that is proposed, that is, that they are able to understand:
- The nature of the illness for which treatment is proposed
- The risks and benefits of receiving the proposed treatment
- The risks of not receiving the proposed treatment
Incapacity to consent to care
If the state of the patient’s health deprives them, either temporarily or permanently, of the capacity required to consent to care, they are considered as being incapable of consenting to care. In this case, another person must give consent to care on their behalf.
In Québec, in the absence of advance medical directives, if a patient has no legal representative (mandatary, tutor or curator), the responsibility for taking decisions on their behalf falls to someone close to them. If the patient is married, in a civil union or a de facto union, this someone may be their spouse; if they are single, it may be a close relative or person who has a special interest in them. This person must act in the interest of the patient and, in as much as possible, respect the wishes that the patient expressed at the time when they were capable of doing so.
Assessment of capability to consent to care
The doctor, together with the team of health professionals, is able to determine whether a patient is capable or incapable of giving consent to care. If the patient has the capacities required to consent to the proposed treatment, the doctor will consider that they are capable. If on the other hand the patient no longer has the capacities required, the doctor will determine that they are incapable of giving consent to care.
Expressing wishes regarding care
It is important to express your wishes in the event of incapacity to consent to care in advance, while you are still able to do so. There are a number of options. You can:
- Verbally inform those who are close to you of your wishes for care.
- Write a document in which you set out your wishes for care in the event of incapacity. This document is called a living will. It can be used by the person who will consent to care on your behalf if you become unable to do so.
- Write your wishes on a sheet of paper, date it and sign it.
- Record a video in which you express your wishes.
- Express your wishes after discussing them with your physician, who will record them in a levels of care form that will be filed in your medical record. The levels of care form is a communication tool between the patient or their representative, the doctor and the care team that records the patient’s preferences concerning investigations, care or treatment to be given.
- Make a mandate given in anticipation of incapacity. This document authorizes the person you have designated as mandatary to take decisions on your behalf, in your interests. This is the person who will agree to or refuse care for you if you become unable to do so. This mandate can be written with or without the help of a notary and takes effect once it has been homologated - that is, a court has established that the mandate exists and is valid. The wishes for care expressed in the mandate will be considered only if you become incapable of consenting to care and another person (the mandatary) must consent to care on your behalf.
- Express your advance medical directives using the Advance Medical Directives in Case of Incapacity to Consent to Care form, or by notarial deed, in which you express your consent or your refusal to consent to certain forms of treatment in specific clinical situations.
The wishes for care that you express verbally or in writing to the person who can consent to care on your behalf (representative) will be respected only if your doctor considers that the care requested is required by your medical condition. In other words, a doctor is not obliged to give you treatment that is not medically indicated in your clinical situation, even if you have requested it.
Your values: points to reflect upon
Before making a decision regarding your wishes for care in the event of your becoming incapacitated, it is important to consider your values. Here are some questions and points to reflect upon that might help you in this:
- What has the greatest value for you? What makes you happy?
- Would you be prepared to accept certain limitations (for example, having to depend on someone else to move you, wash you, feed you, etc.) in order to live a few months or a few years longer?
- Would you be prepared to go without treatments that could prolong your life in order to stay as independent as possible until the end of your life?
- What are your feelings about death and the circumstances surrounding the process of dying?
- What do you need most in order to safeguard your mental or physical well-being?
- Are there mental or physical conditions that would lead you to think that treatments to prolong life should not be given or should be stopped?
- Could your relationships with others influence your choices and decisions regarding your state of health?
These questions are important, in particular for taking decisions concerning care that you wish to receive if you become unable to consent to care. If you have not already done so, discuss your values and your wishes with those close to you. Even if you have expressed your choices in writing, it may be difficult for those close to you to understand them. Discussing your wishes with them, now that you are capable of doing so, may reduce their doubts and their anxiety.
The answers to these questions may well change over time, because your values can evolve. For this reason it may be helpful to repeat this exercise periodically or at particular stages in your life – for example, following a separation, or the death of a person close to you, when a serious illness is diagnosed, or when your health deteriorates.