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SNL1995 CHAPTER A-4.1

ADVANCE HEALTH CARE DIRECTIVES ACT

Amended:

1999 c22 s2; 2006 cM-9.1 s83; 2011 cA-4.01 s36

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



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 .

1995 cA-4.1 s1

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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

                      (i)  life-prolonging treatment,

                     (ii)  psychiatric treatment for a person other than a person admitted to a psychiatric unit as an involuntary patient under section 24 or detained in a psychiatric unit under subsection 81(4) or released into the community under a community treatment order under subsection 40(2) of the Mental Health Care and Treatment Act ,

                    (iii)  the administration of nutrition and hydration, and

                    (iv)  admission to treatment facilities and removal from those institutions, other than the admission, transfer, removal or discharge of a person admitted as an involuntary patient under section 24 or detained in a psychiatric unit under subsection 81(3) or released into the community under an assisted community treatment order under subsection 40(2) of the Mental Health Care and Treatment Act ;

             (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.

1995 cA-4.1 s2; 2006 cM-9.1 s83

PART I
ADVANCE HEALTH CARE DIRECTIVES

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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.

1995 cA-4.1 s3

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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.

1995 cA-4.1 s4

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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.

             (4)  Notwithstanding paragraph 3(a), the common law applies in the conduct of health research where there is no advance health care directive.

1995 cA-4.1 s5; 1999 c22 s2

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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.

1995 cA-4.1 s6

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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.

1995 cA-4.1 s7

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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.

1995 cA-4.1 s8

PART II
INCOMPETENT PERSONS' HEALTH CARE

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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.

1995 cA-4.1 s9

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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 Provincial Director of Adults in Need of Protective Intervention under the Adult Protection Act.

             (4)  Notwithstanding subsection (1), a substitute decision maker referred to in that subsection, other than a court appointed guardian, the Provincial Director of Adults in Need of Protective Intervention under the Adult Protection 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, the Provincial Director of Adults in Need of Protective Intervention under the Adult Protection Act or health care professional may apply to the Trial Division to shorten or waive the 12 month requirement under subsection (4).

1995 cA-4.1 s10; 2011 cA-4.01 s36

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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).

1995 cA-4.1 s11

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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.

1995 cA-4.1 s12

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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.

1995 cA-4.1 s13

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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.

1995 cA-4.1 s14

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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).

1995 cA-4.1 s15

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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.

1995 cA-4.1 s16

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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.

1995 cA-4.1 s17

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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.

1995 cA-4.1 s18

PART III
MISCELLANEOUS

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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.

1995 cA-4.1 s19

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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 .

1995 cA-4.1 s20

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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.

1995 cA-4.1 s21

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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.

1995 cA-4.1 s22

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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.

1995 cA-4.1 s23

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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.

1995 cA-4.1 s24

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Regulations

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

1995 cA-4.1 s25

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RSN1990 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".

1995 cA-4.1 s26

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Commencement

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

1995 cA-4.1 s27