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Statutes of Newfoundland 1995


CHAPTER A-4

CHAPTER A-4.1

AN ACT RESPECTING ADVANCE HEALTH CARE DIRECTIVES AND THE APPOINTMENT OF
SUBSTITUTE HEALTH CARE DECISION MAKERS

(Assented to May 31, 1995)

Analysis

1. Short title

2. Definitions

PART I
ADVANCE HEALTH CARE DIRECTIVES

3. Advance health care directive

4. Coming into effect of advance health care directive

5. Effect of health care decision by maker

6. Writing required

7. Presumption of effectiveness

8. Revocation

PART II
INCOMPETENT PERSONS' HEALTH CARE

9. Incompetent patient

10. Determination of decision maker

11. More than 1 substitute decision maker

12. Best interests of the maker

13. Review of misconduct

14. Mental competency

15. Doctor to notify maker of finding of incompetency

16. Instructions to counsel

17. Directive part of medical record

18. Maker to communicate contents

PART III
MISCELLANEOUS

19. Protection from liability

20. Gift to substitute decision maker

21. Instruction re: body

22. Release of medical information

23. No presumption

24. Offence and penalty

25. Regulations

26. RSN 1990 cN-13 Amdt.

27. Commencement

Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:


Short title

1. This Act may be cited as the Advance Health Care Directives Act.

Definitions

2. In this Act

(a) "advance health care directive" means a document in which a maker sets out that maker's instructions or the maker's general principles regarding his or her health care treatment or in which a maker appoints a substitute decision maker or both;

(b) "health care decision" means a consent, refusal to consent, or withdrawal of consent of any care, treatment, service, medication, or procedure to maintain, diagnose, treat, or provide for an individual's physical or mental health or personal care and includes life-prolonging treatment, psychiatric treatment for a person who has not been admitted under section 5 of the Mental Health Act to a treatment facility, the administration of nutrition and hydration and admissions, other than under section 5 of the Mental Health Act, to treatment facilities and removal from those institutions;

(c) "health care professional" means a person licensed or registered under an Act of the province to provide health care, and includes an administrator of a health care facility;

(d) "maker" means a person who makes an advance health care directive; and

(e) "substitute decision maker" means the person appointed by the maker of an advance health care directive to make health care decisions on his or her behalf.

PART I
ADVANCE HEALTH CARE DIRECTIVES

Advance health care directive

3. (1) A person who is competent may make an advance health care directive setting out the person's instructions regarding his or her health care treatment or setting out general principles regarding the type of health care the person wants.

(2) A person who is competent to make a health care decision may appoint a substitute decision maker, who shall be at least 19 years of age, to decide on the appropriate health care for that person.

(3) The substitute decision maker shall indicate in writing his or her acceptance of the appointment.

(4) The appointment made under subsection (2) shall be valid despite the maker's subsequent loss of competency.

Coming into effect of advance health care directive

4. An advance health care directive and the authority of a substitute decision maker become effective when the maker ceases to be competent to make and communicate health care decisions and continue to be effective for the duration of that period.

Effect of health care decision by maker

5. (1) A health care decision respecting the provision of health care treatment contained in an advance health care directive shall be as effective as if the maker, at the time of needing the treatment, was competent to make a decision and made the decision at that time.

(2) Subject to express limitations in the advance health care directive and to subsection (3), a health care decision made by a substitute decision maker on behalf of a maker shall be as effective as if made by the maker prior to the maker losing the competency to make the health care decision.

(3) A consent by a substitute decision maker on behalf of a maker to

(a) medical treatment for the primary purpose of research;

(b) sterilization that is not medically necessary for the protection of the health of the maker; and

(c) the removal of tissue from the maker's body while living for transplantation to another person or for the purpose of medical education or medical research

shall have no effect unless the substitute decision maker is expressly authorized in the advance health care directive to give such a consent.

Writing required

6. (1) An advance health care directive shall be in writing, witnessed by at least 2 independent persons and signed by the maker.

(2) Where a maker is unable to sign the advance health care directive it may be signed by some other person in the presence of the maker and by the direction of the maker, in which case

(a) the person signing shall not be the substitute decision maker or the spouse of the substitute decision maker;

(b) the maker shall acknowledge the signature in the presence of at least 2 independent witnesses, neither of whom shall be the substitute decision maker or the spouse of the substitute decision maker; and

(c) the witnesses shall attest and subscribe the advance health care directive in the presence of the maker.

(3) Where the maker signs an advance health care directive with a mark other than his or her signature, the maker shall do so in the presence of at least 2 independent witnesses.

Presumption of effectiveness

7. For the purpose of this section, there shall, in the absence of evidence to the contrary, be a presumption

(a) that an advance health care directive was made immediately prior to the maker losing the competency to make health care decisions;

(b) that a person who is 16 years of age or older is competent to make health care decisions; and

(c) that a person who is younger than 16 years of age is not competent to make health care decisions.

Revocation

8. (1) So long as the maker is competent to make health care decisions, an advance health care directive may be revoked by

(a) a later health care directive;

(b) a later writing, signed by the maker, declaring an intention to revoke it and executed in the manner in which an advance health care directive is required to be executed; or

(c) the burning, tearing or otherwise destroying of the advance health care directive by the maker or by some other person in the presence and by the direction of the maker and with the intention of revoking it.

(2) Unless the advance health care directive expressly provides otherwise, where, after executing an advance health care directive in which the spouse of the maker is appointed as substitute decision maker, the maker's marriage is terminated by a divorce decree or is found to be void or declared a nullity by a court in a proceeding to which the maker is a party, the appointment of the spouse as substitute decision maker is revoked.

PART II
INCOMPETENT PERSONS' HEALTH CARE

Incompetent patient

9. (1) Where a health care professional has a patient who requires the administration of health care but lacks the competency to make a health care decision or is unable to communicate a health care decision,

(a) the health care professional shall make a reasonable attempt to determine whether the patient has a substitute decision maker who is available; and

(b) the health care decision may be made on the patient's behalf by the substitute decision maker.

(2) A health care professional is not required to obtain a substitute decision maker's consent in the case of emergency health care, where the health care is necessary to preserve the patient's life or health and the delay involved in obtaining consent from a substitute decision maker may pose a significant risk to the patient.

Determination of decision maker

10. (1) Where a person requires the administration of health care but lacks the competency to make a health care decision and has not, while he or she was competent, appointed a substitute decision maker, or a guardian has not been appointed for the purpose by a court, or a person has been appointed but is unable or refuses to act, the first named person or a member of the category of persons on the following list may, if he or she is at least 19 years of age, act as a substitute decision maker:

(a) the incompetent person's spouse;

(b) the incompetent person's children;

(c) the incompetent person's parents;

(d) the incompetent person's siblings;

(e) the incompetent person's grandchildren;

(f) the incompetent person's grandparents;

(g) the incompetent person's uncles and aunts;

(h) the incompetent person's nephews or nieces;

(i) another relative of the incompetent person; and

(j) the incompetent person's health care professional who is responsible for the proposed health care.

(2) Notwithstanding subsection (1), where a substitute decision maker is not available, or is unable or unwilling to make the health care decision, the substitute decision maker for that decision becomes the next available person or category of persons listed in subsection (1).

(3) Notwithstanding subsection (1), where a person has indicated in an advance health care directive that he or she does not wish an individual to act as his or her substitute decision maker, the individual may only act as the substitute decision maker where he or she is the person's guardian appointed by the court or the Director of Neglected Adults appointed under paragraph 6(4)(c) of the Neglected Adults Welfare Act.

(4) Notwithstanding subsection (1), a substitute decision maker referred to in that subsection, other than a court appointed guardian, the Director of Neglected Adults under the Neglected Adults Welfare Act, or a health care professional, may not act as a substitute decision maker unless he or she has had personal involvement with the incompetent person at some time during the preceding 12 months.

(5) A substitute decision maker other than a court appointed guardian or the Director of Neglected Adults appointed under the Neglected Adults Welfare Act, or health care professional may apply to the Trial Division to shorten or waive the 12 month requirement under subsection (4).

More than 1 substitute decision maker

11. (1) Where more than 1 person in a category is qualified to act as a substitute decision maker, the decision of the majority prevails, and in the absence of a majority decision, the substitute decision maker becomes the next available person or category of persons listed in subsection 10(1).

(2) Where more than 1 person is qualified to act as a substitute decision maker, the persons shall designate 1 person from among themselves to communicate their health care decisions to the health care professional and the professional may assume that the person is communicating the health care decision of the majority of the substitute decision makers unless the health care professional has reasonable grounds to believe that it is not so.

(3) Where the substitute decision makers fail to designate a person under subsection (2), the substitute decision maker becomes the next available person or category of persons in subsection 10(1).

Best interests of the maker

12. (1) A substitute decision maker shall act

(a) in accordance with the directions provided in an advance health care directive;

(b) in accordance with the wishes expressed by the maker to the substitute decision maker prior to the maker's incompetency where they are known to the substitute decision maker; or

(c) when the substitute decision maker has no knowledge of the maker's wishes, in accordance with what the substitute decision maker, in his or her discretion, reasonably believes to be in the best interests of the maker.

(2) A substitute decision maker named in an advance health care directive may not delegate the authority to make health care decisions.

(3) Where more than 1 substitute decision maker is named in an advance health care directive and the advance health care directive does not indicate whether they are to act jointly or in succession to one another, they shall be considered to be appointed to act successively, in the order named in the advance health care directive.

(4) Where more than 1 substitute decision maker is named in an advance health care directive to act jointly rather than successively, the following rules shall apply, unless the advance health care directive provides otherwise

(a) where 2 substitute decision makers are named a decision requires unanimity to be given effect;

(b) where more than 2 decision makers are named the decision of the majority shall be considered to be the decision of all; and

(c) where 1 or more of them dies before or after the coming into effect of the advance health care directive or is unwilling or, after reasonable inquiries, unavailable to make a health care decision, the remainder of them may make the decision and the decision of the majority of the remainder shall be considered to be the decision of all.

Review of misconduct

13. Where the court on application of an interested party is satisfied that a substitute decision maker is acting in bad faith or contrary to the known instructions or wishes of the maker, it may, on application, by order, suspend or terminate the appointment of the substitute decision maker in which case it may also rescind a health care decision made by the substitute decision maker and, where the advance health care directive does not appoint more than 1 substitute decision maker the court shall substitute its own decision in place of the rescinded decision or appoint another substitute decision maker in accordance with section 10.

Mental competency

14. A maker shall be considered competent to make an advance health care directive where he or she is able to understand the information that is relevant to making a health care decision and able to appreciate the reasonably foreseeable consequences of that decision.

Doctor to notify maker of finding of incompetency

15. (1) Where a maker's doctor determines that the maker is not competent to make a health care decision the doctor shall make a statement in the medical record of the maker specifying the nature and extent of the incompetency and the facts upon which the finding is made.

(2) A doctor who determines that a maker is mentally incompetent shall ensure that the maker is aware of or is notified of the finding and of the maker's right to contest the finding.

(3) Where a maker contests the finding of incompetency, there shall be an evaluation by a 2nd doctor who is chosen by the maker.

(4) A finding by the 2nd doctor that a maker is competent shall prevail over the 1st doctor's finding.

(5) Where the 1st doctor's finding of incompetency is confirmed, the maker shall be so notified.

(6) Where a maker or an interested party wishes to contest the confirmation of incompetence by the 2nd doctor he or she shall do so by applying to the Trial Division within 30 days of the notification referred to in subsection (5).

Instructions to counsel

16. In a proceeding in which the competency of a maker to make health care decisions is at issue, the maker shall be considered to be competent to instruct counsel.

Directive part of medical record

17. A health care professional who has a copy of an advance health care directive shall include it in the maker's medical record.

Maker to communicate contents

18. (1) A maker of an advance health care directive shall communicate its contents to a health care professional.

(2) Where the maker was incompetent upon admission to a health care facility or is being treated outside the facility, the health care professional providing treatment is required at all times to ensure that he or she makes reasonable inquiry as to the existence of an advance health care directive and of the appointment of a substitute decision maker.

PART III
MISCELLANEOUS

Protection from liability

19. (1) No action lies against a substitute decision maker by reason only of having acted, in good faith, in accordance with the Act.

(2) Where a health care professional makes a reasonable attempt to find the substitute decision maker, the health care professional is not liable for failing to find the correct substitute decision maker.

(3) No action lies against a health care professional who administers or refrains from administering health care to another person by reason only that the health care professional has acted in good faith in accordance with a health care decision made by a substitute decision maker.

Gift to substitute decision maker

20. (1) Where a substitute decision maker has acted in good faith, a health care decision made by the substitute decision maker does not affect the substitute decision maker's or his or her spouse's entitlement to

(a) a disposition under the will of the person who made the advance health care directive;

(b) the proceeds of an insurance policy on the life of a person who made an advance health care directive;

(c) a share under the Intestate Succession Act of the estate of a person who made an advance health care directive.

(2) Where a person

(a) is a witness to the execution of an advance health care directive; or

(b) signs an advance health care directive on behalf of the maker;

that person may, nevertheless

(c) be named as a beneficiary in the will of a maker, or in a life insurance policy of a maker; or

(d) receive a share of the maker's estate under the Intestate Succession Act.

Instruction re: body

21. (1) A person may, in an advance health care directive, give instructions with respect to the disposition of his or her body after death.

(2) Where there is a conflict between an instruction given by a person in an advance health care directive with respect to the disposition of his or her body after death and a consent given for that purpose under the Human Tissue Act, the later of the instruction and the consent shall prevail.

Release of medical information

22. Notwithstanding a restriction, whether statutory or otherwise, relating to the disclosure of confidential medical information, but subject to express limitations in the advance health care directive, a substitute decision maker shall have the right to be provided with all information necessary to make informed health care decisions on behalf of the maker.

No presumption

23. No inference or presumption shall arise by reason only that a person has not executed or has revoked an advance health care directive.

Offence and penalty

24. A person who, without the maker's consent, wilfully conceals, cancels, obliterates, damages, alters, falsifies or forges an advance health care directive or a revocation of an advance health care directive is guilty of an offence.

Regulations

25. The Lieutenant-Governor in Council may make regulations prescribing a form for advance health care directives.

RSN 1990 cN-3 Amdt.

26. Paragraph 6(4)(c) of the Neglected Adults Welfare Act is amended by inserting immediately after the words "in his or her discretion" the words "may make health care decisions on behalf of the adult or".

Commencement

27. This Act shall come into force on July 1, 1995.

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