ADVANCED DIRECTIVE NOT THE RIGHT TOOL FOR INSTRUCTING PHYSICIAN ASSISTED DEATH

On Monday night, I made the excruciating decision to say good-bye to my loyal and loving bichon-cocker spaniel, Barney. He was a rescue dog that came to me in 2005; I am not entirely certain how old he was, but suspect he was currently either 14 or 15.  He had a great life; but the last year has been challenging. His mobility and incontinence have been steadily worsening.  He has been falling a lot; Monday he fell and could not get up; he may have had a stroke.

After a couple of hours of immobility, I decided it was time. The vet concurred.  I remember on the drive to the emergency clinic asking Barney: “I wish you could tell me what you want me to do”.  My heart broke when the doctor inserted the needle and my buddy took his last breath.

So it is through that emotional lens that I consider the debate concerning C-14, the Government’s response to the “Carter” decision on physician assisted dying. Those who have never owned pets will see no analogy whatsoever.  Those who have, know the pain and heartache.

I admit to feeling guilt—guilt over the decision that was made and alternatively, for not having made it sooner. Some close to me think I let it go on too long. I’ll never know. There are no right or wrong responses. You never know for sure when, if ever, is the right time.  In the absence of the pet being able to participate in the decision, we do the best we can, considering his welfare and quality of life.

So when I look at C-14, the starting point is informed consent. Critics of the legislation point to the absence of advance directives being able to communicate the patient’s wishes.

In Alberta, a personal directive allows a person with capacity (the maker) to appoint another person (the agent) to make personal decisions for them at some future time when the maker lacks the capacity to make them.  All provinces have some type of advanced or personal directive statute allowing the agent of an incapacitated maker to make non-financial decisions regarding residency, personal activities and associations and medical treatment.    The various provincial statutes regarding “living wills” are similar but not uniform.

The maker must have mental capacity when the directive was signed; but it takes effect when the maker lacks the mental capacity to make non-financial decisions. An Enduring Power of Attorney is the companion regime regarding the financial affairs of an individual lacking mental capacity.

It is common for personal directives to contemplate end of life care including important matters such as resuscitation and life support procedures. A personal or advance directive must be drafted carefully, as it is impossible to contemplate what medical exigency the maker may encounter years later. It is the role of the agent to make decisions in accordance with the directive but also make decisions the agent believes the maker would have made if able to do so.

I believe that fact has been lost in the current debate; in almost every circumstance involving an advance directive, it is the agent who is making decisions on behalf of the incapacitated maker.

In Alberta, at least, it is possible to sign a personal directive without appointing an agent. This is strongly not recommended.  Some makers want to create their own binding instructions on care givers.

Talk to any Estate Planning Lawyer and they will tell you how easily makers (with capacity) are confused when it comes to these complex matters.  For example, their instructions will be: “I do not want to be resuscitated”.  However, when challenged, they probably mean they do not want to be resuscitated if they are in a persistent vegetative state without reasonable hope of regaining awareness plavix 75 mg. That is an important qualifier. They probably mean they will not consent to life support.  However, if their illness or trauma is transient and there is a reasonable expectation of recovery, their instructions will be very different.

The point is these matters are complex and very fact specific and cannot contemplate all possible medical circumstances. And almost always, it is the agent making the critical decisions in consultation with care givers.

From a legal perspective, a maker can entrust an agent to make decisions regarding non-intervention (not resuscitating under specified circumstances) but an active intervention such as euthanasia is a very different matter. Although the result is likely the same, not intervening and allowing nature to take its course, and active intervention to terminate life is not a difference of degree; it is a difference of kind.

Advance directives are used in some very limited circumstances in some jurisdictions that allow physician assisted death.  The Joint Senate-Commons Committee recommended that advance directives be allowed after diagnosis with a condition that will result in eventual loss of competence.  This might satisfy the legal requirement of informed consent, as the patient at least has a diagnosis and can contemplate their future.

Our Supreme Court did not specifically deal with the issue of advance directives because the facts in ‘Carter” did not require it.  However, protection of vulnerable persons was the Court’s primary objective in granting limited access to physician assisted death.

Accordingly, contemporaneous competence to the procedure and knowledge of all of the facts and circumstances ought to be prerequisites for informed consent.

Advance directives are simply an inadequate tool to provide the level of informed consent required for such a complex and absolute instruction. For example how is “intolerable pain” objectively determined, especially by a patient lacking mental capacity and how is it communicated??

Finally, it is unfair and unrealistic to entrust this type of decision to an agent. An agent simply cannot possibly know what the maker would have wanted regarding circumstances that were not contemplated when the directive was made possibly years earlier.

I will always second guess my decision to put Barney down and when I made it; I cannot imagine being entrusted to make that decision for another human being.

I believe that the procedure must be limited to those who can give informed consent. That means competent adults, provided the other medical conditions are present. C-14 is an imperfect, but reasonable, response to an impossible and one size will never fit all moral and legal quagmire.

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