I recently read an article about a dispute between the daughter of a 90 year-old crash victim, who suffered brain damage and spinal cord injuries, and his medical team. The daughter was the man’s substitute decision maker. According to the article, the daughter “wanted the hospital to do everything possible to treat her father and extend his life. Her father, she said, is a Holocaust survivor who would want all steps taken to keep him alive. But internal medicine specialist Dr. Carl van Walraven believed aggressive measures were not in the best interests of his patient, identified only as GS.” See the whole story here: http://www.vancouversun.com/news/Hospital+wins+right+withhold+heroic+measures+from+year+crash+victim/7025896/story.html
This is clearly a sad case and we won’t comment on the dispute. If the patient was unable to communicate his wishes, it is an example of why we recommend that adults create and execute Representation Agreements (an “RA”), made under the Representation Agreement Act in BC.
First, by making an RA, a person gets to select for himself or herself who will be the decision maker in the event that the person is unable to make his or her own decisions. In this case, the patient might have chosen his daughter; he might have chosen someone else. By actively choosing someone, he might have discussed with that person what his values and beliefs were with respect to medical treatment. He would also have had an opportunity to set out in writing in the RA what types of treatment he did and did not want from his medical team, and his philosophy towards end of life (i.e. “no heroic measures” versus a desire to have all intervention attempted.) We frequently include specific treatments that our clients wish to have or forego – from the use of aversive stimuli to participation in experimental health care. We recommend clients speak with their doctors to ensure they understand the medical terms and the ramifications of their choices, before the need arises.
Some people are concerned about handing over their medical decision making to someone. In BC, there are also safeguards in the Representation Agreement Act regarding the use of the RA by the designated decision-maker. For example, the Representation Agreement Act contains provisions regarding to objections. In Section 30, a person can object to the Public Guardian and Trustee of BC (“PGT”) if there is reason to believe that the “making, use or revocation of a representation agreement … is clearly inconsistent with the current wishes, values, beliefs, or best interests of the adult who made, revoked or changed the agreement (s.30(1)(c); or if “anything improper has occurred in the making, use or revocation of a representation agreement,” (s. 30(1)(e). There is also specific criteria for making an objection in s.30(1)(h)and (i), which provides for an objection if
”s.30(1)(h) a representative is
(i) abusing or neglecting the adult for whom the representative is acting,
(ii) failing to follow the instructions in the representation agreement,
(iii) incapable of acting as representative, or
(iv) otherwise failing to comply with the representation agreement or the duties of a representative,
(i) a representative has given or proposes to give consent to health care that is not authorized by the representation agreement,”
On such an objection, the PGT will review it and has options for action, including conducting an investigation, applying to court for orders, or taking other actions considered necessary (see sections 30-34).
The bottom line: if you have specific views on what should happen, in the event you can’t advocate for yourself, you should consider drafting a RA. It might save your family and friends a lot of difficulty.
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