Consultation Paper on Bioethics - Law Reform Commission

settings. The health care provider must not provide treatment if there are
“reasonable grounds” to believe that a person expressed an “instruction or wish”
to refuse specific treatment. It has been argued that the use of the word “wish”
indicates that an oral statement may be sufficient. 98 The only express limitation
is that the instruction or wish must be made after the person is 19 years old in
British Columbia, or 16 years old in Ontario.
(8) Conclusion
4.59 In the Commission‟s view, in order to be valid, the advance care
directive must have been created while the author had the capacity to do so.
The author of an advance care directive can consent to the treatment which
they have refused in the advance care directive, provided they had the capacity
to do so. It may not be possible to make the revocation of an advance care
directive known. Thus if the patient has done or said anything which puts
reasonable doubt in the doctors mind, the doctor should proceed with the
treatment. After all, the bias must always be in favour of preserving life. When
considering whether the advance care directive is valid under such
circumstances, the Commission considers that, the doctor should take into
consideration the length of time that has elapsed between the drawing up or
revision of the advance care directive and the time it came into effect. However
while time may have altered a person‟s perspective, it may not necessarily have
changed a person‟s opinion. A doctor may take into consideration any actions
or statements made while the author of the advance care directive was
competent.
4.60 In addition, the Commission considers a doctor should make all
attempts to decipher what a patient intended in their advance care directive.
However, time may make a once clear advance care directive ambiguous. If a
doctor is unsure about the advance care directive they should not second guess
the wishes of the patient. Bearing these considerations in mind, the
Commission turns to set out its provisional recommendations on this:
4.61 The Commission provisionally recommends that an advance care
directive will not be valid if
The author of the advance care directive did not have
capacity at the time of its creation
The creation of the advance care directive was not a
voluntary act of the author
98 Clough “A Critique of Advance Directives and Advance Directives Legislation”
(2006) 11 Appeal: Review of Current Law and Law Reform 16 at 26.
110