Lonny Rosen's tips for advance-care planning

Doctors need to know the law around advance-care planning, both in order to support their patients in communicating their wishes and in order to give effect to those wishes, Toronto health lawyer Lonny Rosen tells the Medical Post.

Doctors also have to be able to help family members or other substitute decision makers (SDMs) comply with their obligations under the law when making decisions on behalf of another person, he says.

The article emphasizes how Ontario doctors should be aware of the province’s unique legal framework when discussing advance-care plans with patients.

Rosen, partner at Rosen Sunshine LLP, comments on doctors’ obligations with respect to end-of-life care and advance-care planning by their patients. He also offered his top-five tips to doctors for helping their patients and patients’ substitute decision-makers to manage these issues.

He says the key issue in Ontario’s law has to do with context — a patient cannot make an informed decision about the future, because the details around making a decision can obviously change.

“A person cannot generally consent in advance, because they don’t know what the circumstances will be. Unless the person has a disease where the progression is predictable,” he says. “That’s what advance-care planning is all about: Having a discussion about a person’s values, beliefs and wishes so that that person has the knowledge to make decisions on behalf of an incapable person.”

In the rare circumstances that doctors and SDMs can’t agree, there is a mechanism for that – they can bring forward what's known as a Form G application under the Consent and Capacity Board, a tribunal with the expertise to assess these types of challenging issues, says Rosen, who also sits on the board but wasn't speaking on its behalf to the Medical Post.

“If a health practitioner believes that the person is not following the rules, they can go to the Consent and Capacity Board,” he says. “A hearing must be held in seven days.”

Rosen outlines five key tips on advance-care planning in Ontario:

1. Remember, a capable person must give or refuse consent to his or her own treatment. If the patient is capable, there’s no need to look at an advance-care plan to seek the consent of anyone else.

2. If a person is incapable, obtain consent to treatment from the highest-ranking substitute decision-maker (SDM), but only after providing all of the information necessary for the person to give informed consent, and answering all questions.

3. If the incapable person has prepared an advance-care plan, that plan is to guide the person’s SDM, not the doctor.

4. Guide SDMs in giving or refusing consent on behalf of an incapable person by asking them: Did the person express a wish that is applicable to the circumstances? If so, that wish must be followed, regardless of the SDM’s or your view as to what is best for the patient. If not, the consent must be given or refused in accordance with a person’s best interests.

5. Assist the SDM to determine what is in the incapable person’s best interests by looking at the person’s values and beliefs and the impact of the treatment proposed.

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