STILLBORN AUTONOMY: WHY THE REPRESENTATION AGREEMENT ACT 0¥ BRITISH COLUMBIA FAILS AS ADVANCE DIRECTIVE LEGISLATION by JOAN L. RUSH Barrister and Solicitor B.COMM., University of British Columbia, 1981 LL.B., University of British Columbia, 1982 A THESIS SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIRMENTS FOR THE DEGREE OF MASTER OF LAWS in THE FACULTY OF GRADUATE STUDIES (LAW) THE UNIVERSITY OF BRITISH COLUMBIA December 2005 © Joan Linda Rush, 2005 ABSTRACT An advance directive is an instruction made by a competent person about his or her preferred health care choices, should the person become incapable to make treatment decisions. Legal recognition of advance directives has developed over the last half century in response to medical advances that can prolong the life of a patient who is no longer sentient, and who has decided to forego some or all treatment under such circumstances. Two types of directive have emerged in the law: an instructional directive, in which a person sets out treatment choices, and a proxy directive, which enables the person to appoint a proxy to make treatment decisions. Development of the law has been impeded by fear that advance directives diminish regard for the sanctity of life and potentially authorize euthanasia or assisted suicide. In Canada, this fear explains the continued existence of outdated criminal law prohibitions and contributes to provincial advance directive legislation that is disharmonized and restrictive, in some provinces limiting personal choice about the type of advance directive that can be made. The British Columbia Representation Agreement Act (RAA)1 is an example of such restrictive legislation. The RAA imposes onerous execution requirements, is unduly complex and restricts choice of planning instrument. Respect for patient autonomy requires that health care providers honour patients' prospective treatment preferences. Capable persons must have ready access to a choice of health care planning instruments which can be easily executed. B.C. should implement advance directive legislation that meets the needs and respects the autonomy of B.C. citizens. The Criminal Code must be amended to eliminate physicians' concern about potential criminal liability for following an advance directive. Advance directive legislation across Canada should be harmonized. Finally, health care providers should receive training on effective ways to communicate with patients about end-of-life treatment decisions to ensure that patients' health care choices are known and respected. 1 Representation Agreement Act, RSBC 1996, c. 405. 2 Criminal Code, RS 1985 c. C-46. ii TABLE OF CONTENTS ABSTRACT ii TABLE OF CONTENTS iii ACKNOWLEDGEMENTS vi DEDICATION vii INTRODUCTION 1 1. OVERVIEW OF STUDY 1 2. THESIS ARGUMENTS 5 3. CHAPTER OUTLINE 9 4. RELATED ISSUES 12 CHAPTER ONE: THE ADVANCE DIRECTIVE 14 1. INTRODUCTION 14 2. DEFINITIONS ; 17 3. ETHICAL AND LEGAL DEVELOPMENT OF ADVANCE DIRECTIVES 24 3.1. Ethical Impetus for Advance Directives 24 3.2. Legal Development of Advance Directives 28 3.2.1. U.S. Legal Development 28 3.2.2. Canadian Legal Development 40 4. CONCLUSIONS 49 CHAPTER TWO: SHADING OUR EYES: SOCIAL AND MEDICAL BARRIERS TO ADVANCE DIRECTIVES 54 1. INTRODUCTION.......... 54 2. COMPLETION OF ADVANCE DIRECTIVES 57 3. PUBLIC INTEREST IN DISCUSSING ADVANCE DIRECTIVES 62 4. MEDICAL COMMUNITY BARRIERS TO COMPLETION OF ADVANCE DIRECTIVES .. 68 5. CONCLUSIONS , 75 CHAPTER THREE: HAS THE LIVING WILL FAILED? A PROGNOSIS FOR THE LIVING WILL 78 1. INTRODUCTION...... 78 2. THE DEBATE ABOUT THE LIVING WILL 83 3. LIMITATIONS OF LIVING WILLS 89 3.1. Statutory Restrictions 89 3.2. Living Wills Are Not Clinically Relevant 94 3.3. Failure To Ensure Complete Immunity To Physicians 97 3.4. Statutory Impediments to Public Use of Living Wills 98 3.5. Use of Vague Terminology and Statutory Complexity 100 3.6. Incompetent Revocation 101 iii 3.7. Summary of Statutory Limitations 102 3.8. Moral Objections to Living Wills: Precommitment 103 4. LIMITATIONS OF PROXY ADVANCE DIRECTIVES 106 4.1. Statutory Limitations 106 4.2. Substitute Decision Making 107 4.2.1. Substituted Judgement Standard 107 4.2.2. Subjective vs. Objective Standard 108 4.2.3. Best Interests Standard 110 4.3. Conflict of Interest Ill 5. SUMMARY OF LIMITATIONS COMPARISON 113 6. RESOLVING HARD CASES 114 6.1. Two Hard Cases 114 1. In re Schiavo 114 2. Jantzen v Jantzen 118 6.2. Euthanasia and Sanctity of Life Arguments 119 7. CONCLUSION: THE PROGNOSIS FOR LIVING WILLS 123 CHAPTER FOUR: ADVANCE DIRECTIVES IN CANADA: LEGAL STATUS, LEGAL PROBLEMS, LEGAL PROSPECTS 126 1. INTRODUCTION 126 2. LEGAL STATUS 128 3. LEGAL PROBLEMS 135 3.1. The Canadian Criminal Law 135 3.2. The Provincial Legislation 150 3.3. The Jurisprudence 158 4. LEGAL PROSPECTS 163 CHAPTER FIVE: THE REPRESENTATION AGREEMENT ACT. 165 1. INTRODUCTION 165 2. THE DEBATE ABOUT ADVANCE DIRECTIVE LEGISLATION IN B.C 167 3. HISTORY AND PURPOSES OF THE REPRESENTATION AGREEMENT ACT 172 3.1. The Report "HOW CAN WE HELP?" 172 3.2. Proposed Purposes Of The Representation Agreement Act 174 3.3. Enactment and Proposed Amendment of the Representation Agreement Act 178 4. LIMITATIONS OF THE REPRESENTA TION AGREEMENT ACT 184 4.1. The Problematic Relationship of the Representation Agreement Act to the Health Care (Consent) and Care Facility (Admission) Act 184 4.2. Restriction to Proxy Advance Directive 188 4.3. Restriction on Actions of the Representative 192 4.4. Onerous Execution Requirements 193 4.5. Restriction On Mature Minors Making Advance Directives 197 4.6. Conflicting Roles of the Representative under the Common Law 200 4.7. Summary 202 5. ETHICAL ANALYSIS OF THE RAA 204 iv 5.1. Paternalistic Concern For Safety 204 5.2. Moral Discomfort With Advance Directives 206 6. CONCLUSION 210 CHAPTER SIX: CONCLUSION .213 1. INTRODUCTION 213 2. SUMMARY 214 2.1. Public and Medical Reticence 216 2.2. Euthanasia and Sanctity of Life Arguments 217 2.3. Criminal and Civil Liability 221 2.4. Disharmonized Provincial Legislation 222 2.5. The Example of the Representation Agreement Act 224 3. RECOMMENDATIONS FOR LEGISLATIVE CHANGE 226 3.1. Uniformity 226 3.2. Advance Directive Legislation in British Columbia 229 4. RECOMMENDATIONS FOR FURTHER RESEARCH 231 5. CONCLUSION 232 BIBLIOGRAPHY 234 v ACKNOWLEDGEMENTS I have been privileged to study under two inspiring academic supervisors: Professor Mary Anne Bobinski, Dean, Faculty of Law, UBC, and Dr. Michael McDonald, Maurice Young Chair of Applied Ethics, W. Maurice Young Centre for Applied Ethics, UBC. I am grateful for their excellent advice and direction. I have also been honoured to be guided by the following exceptional people who helped me to complete my thesis: ~ Dr. Eugene Cameron, Professor Emeritus, Faculty of Medicine, UBC and Visiting Professor, Centre for Applied Ethics, UBC, who directed my earliest writing efforts, provided relevant books and materials and offered a physician's view of end-of-life care; ~ Gerrit Clements, Special Health Law Consultant, B.C. Ministry of Health, who shared his extensive knowledge of Canadian health law and particular expertise in B.C. health legislation with me and who constructively criticized my analysis of the law; ~ Dr. Joseph M. Connors, M.D., Clinical Professor, UBC, and Chairs BCCA Research Ethics Board, who gave unstintingly of his limited time to comment thoughtfully on my study proposal and who twice gathered groups of his oncology colleagues for informal discussions with me about advance directives and end-of-life care; ~ Dr. Albert J. McClean, Q.C., Professor and Dean Emeritus, Faculty of Law, UBC, a renowned teacher and an acknowledged expert on the Representation Agreement Act, who provided insightful comments and excellent suggestions on every draft of my thesis; ~ Dr. Eugene Meehan, Q.C., who unexpectedly and kindly offered encouragement and detailed advice on how to commit a thesis to paper. I also received invaluable support and assistance from John French, Claude Gingras, Sue Grant, Colin H.H. McNairn, Dr. Sidney Mindess, Dr. Wes Pue, Professor Emeritus J.C. Smith, Dr. Simon Sutcliffe and Dr. Frances Wong. I am extremely grateful to all of these people. vi DEDICATION For Dennis, Elizabeth and Graeme who make everything worthwhile. With thanks and love. vii INTRODUCTION 1. Overview of Study An advance directive is a statement of the maker's wishes regarding acceptance or refusal of medical treatment, particularly life-sustaining medical treatment, in the event he or she becomes incapable to make personal health care decisions. Advance directives are typically made in writing but may be oral.1 Two primary forms of advance directive have developed in the law: the instructional advance directive and the proxy advance directive. The instructional advance directive, frequently called a "living will", explains the maker's preferences for future medical treatment in the event of incapacity. The proxy advance directive, frequently called a "durable power of attorney for health care", specifies the person or persons who the maker appoints to make health care decisions on his or her behalf. Advance directives typically "spring" to legal life on the incapacity of the maker, although some directives may have immediate effect.3 The advance directive evolved in response to people's desire to have the ability to provide medical treatment instructions, particularly a preference to forego life-sustaining treatment, in the event of future incapacity.4 The legal foundation for the advance directive is the doctrine of consent to medical treatment.5 The advance directive is 1 Alan Meisel & Kathy Cerminara, The Right to Die: The Law of End-of-Life Decisionmaking, 3rd ed., (New York: Aspen Publishers, 2004 (2005 Supplement)) [Meisel & Cerminara, The Right to Die] at 7-8. 2 See Chapter One, below, for further discussion of the definitions of advance directives. 3 See Carol Krohm & Scott Summers, Advance Health Care Directives: A Handbook for Professionals, (Chicago: ABA Publishing, 2002) [Krohm & Summers, Advance Health Care Directives] ("Unless otherwise stated, the effectiveness of the powers might begin at the moment of signing and run until death.