Advance care planning was originally devised as a process to ensure that a person’s wishes and values are respected in some of the most important decisions of his or her life when that voice is silenced due to incapacity. Such wishes could be expressed, verbally or in writing, to those who would subsequently ensure that these wishes and values were factored into any decisions regarding healthcare and treatment choices. The importance of having one’s voice heard quickly translated into the creation of powers of attorney documents for personal or health care as a legal document with the aim to express one’s directives or appoint someone to make substitute decisions. These documents are now almost always generated at the same time as other, more traditional aspects of estate planning.
These problems, if unaddressed, are only going to cause increasing challenges in medical and legal practice: as people live longer; as families become smaller; as friendships fade or evolve; as more people choose to stay single and not have children, more people may find themselves alone and may, therefore, seek to express their wishes and values through written advance directives rather than solely appointing a substitute decision-maker. However, the text and content of advance directives are often ambiguous, do not speak to the situation, and are frequently overly standardized in legal practice in ways that prohibit the expression of unique personal wishes and instead promote conformity. While the actual wording and systematic inclusion of “no heroic” clauses in power of attorney documents has not been altered for years, such clauses as currently written are not particularly helpful in clinical practice. For advance directives to speak clearly, truly respect autonomy and provide meaningful guidance, the text of legal documents must improve—the time for them to do so is now.
This series therefore aims to set out an intensivist’s perspectives on the top ten ways estate lawyers can improve the content and scope of advance directives, the wording of any “standardized” no heroics clauses, the process to ensure these wishes and values are respected and, as a result, improve the advice they provide to their clients and the quality of end of care they ultimately receive.
The author wishes to encourage and engage in discussion regarding the directives she proposes here. Please take a moment to express your thoughts and critical commentary in the comments section below.
About the Author
LAURA HAWRYLUCK received her MD in 1992 from the University of Western Ontario where she also served her Internal Medicine residency. She completed a Fellowship in Critical Care at the University of Manitoba in 1997 and received her MSc in Bioethics in 1999 from the Joint Centre for Bioethics and the Institute of Medical Science at the University of Toronto. From 1999-2001 she was Assistant Professor of Critical Care/Internal Medicine, Queen’s University, Kingston, Ontario. In March 2000 she was appointed Physician Leader of the national Ian Anderson Continuing Education Program in End-of-Life Care at the University of Toronto and is currently Associate Professor of Critical Care Medicine at the University of Toronto. In 2002, she was awarded the Queen’s Golden Jubilee Medal for contributions to Canada in recognition of her work in creating the Anderson Program and improving end of life care for Canadians. Dr. Hawryluck is co-author and editor of “Law of Acute Care in Canada” to be published shortly by Carswell, a division of Thomson Reuters.
Dr. Hawryluck is deeply involved in international humanitarian projects. She has worked with critical care and burn units in Indore India and Cote d’Ivoire on a variety of quality improvement and educational initiatives. She was co-creator and co-Director for RCCI of the first Doctorate in Medicine Program in Critical Care in the entire country of Nepal. She worked with the Nepal Medical Council as an international consultant to enact a Code of Ethics and Professionalism for all physicians in Nepal.
In November 2016, the Ontario Legislature passed the All Families Are Equal Act, which the Liberal government claims will “ensure equal treatment for all parents and children in the province”. This legislation marks an important shift for the province, whose former statutory regime – not having been updated since 1978 – did not explicitly address conception through assisted reproductive technologies or third-party arrangements. The new legislation’s purpose is commendable: to ensure that all types of parents are treated equally, regardless of their sexual orientation, reproductive capacity, or the number of parental figures in a child’s life. However, the statute has faced criticism from multiple angles.
The All Families Are Equal Act proposes an entirely new scheme for determinations of parentage when a child is conceived through surrogacy—whether the child is genetically related to both intended parents (gestational surrogacy, where an embryo is implanted into a surrogate mother’s uterus through in-vitro fertilization) or not (either gestational surrogacy with a donated egg and/or sperm, or traditional surrogacy where the surrogate mother’s own ovum is artificially inseminated).
Previously, opposite-sex intended parents would have to make a declaration of parentage in court in order to override presumptions that the surrogate mother and her own partner, if applicable, were the parents of the child. Furthermore, same-sex partners (two gay men, or the female partner of a woman who gave birth) could only establish parentage through adoption. The legislation now provides a streamlined, out-of-court process for intended parents. Rather than requiring a judicial application, intended parents will be able to use a mail-in application to register themselves as the legal parents of their child.
According to the Ontario government, this shift will provide greater clarity and certainty during the surrogacy process, while offering greater legal security to parents in the event of a medical emergency. Indeed, the Bill was first introduced as Cy and Ruby’s law. Named for the children of Jennifer Mathers McHenry and her wife Kristi, the Act sought to rectify situations such as theirs: if Jennifer, the genetic mother and carrier of the child, had died during her difficult childbirth, Kristi would have been in a legally precarious situation and may not have been able to take their baby home.
The All Families Are Equal Act explicitly recognizes that ovum and sperm donors are not the parents of a child; however, the legal status (or lack thereof) of intended parents and donors requires corroboration through a written pre-conception agreement. The legislation also allows for up to four people to be registered on a child’s birth certificate—a codification of the Ontario Court of Appeal’s 2007 decision in AA v BB.
This legislation, as proclaimed by its title, aims to provide equal legal treatment for parents with non-“traditional” family structures or family building processes. Its elimination of gendered legal terms such as “mother” and “father” in favour of “parent” is an important semantic shift towards normative inclusion of non-heterosexual parental setups. Moreover, fertility law experts such as Sara Cohen applaud the act for requiring surrogate mothers to have independent legal counsel in the negotiation of the pre-conception agreement, which may help guard against the exploitation of vulnerable women.
However, certain aspects of this new legal regime may have unintended consequences or even run counter to the Act’s stated goals. First, the statute renders all surrogacy contracts unenforceable, whether they concern gestational or traditional surrogacy. Unlike in Quebec, where all surrogacy agreements are absolutely null as per article 541 of the Civil Code, Ontario courts had previously been willing to enforce gestational surrogacy contracts.
As healthcare lawyer Lisa Feldstein notes, surrogacy contracts are sophisticated legal instruments that contain numerous provisions relating to contingencies beyond parentage. For example, provisions may stipulate who will be allowed in the delivery room, who the surrogate should give the child to in the event of the intended parents’ divorce or death, how many embryos will be transferred to the surrogate’s womb, and obligations for support of the surrogate that the intended parents will assume should she require pre- or post-birth bedrest.
Feldstein fears that without the judicial oversight that accompanies the possibility of enforcement, the rights and interests of all parties will not be sufficiently protected. Given how the demand for surrogate mothers dwarfs supply in Canada, where surrogate mothers cannot be paid beyond reimbursement for reasonable expenses, Feldstein argues that rendering all agreements unenforceable will erect additional barriers to family-building by creating a chilling effect. Further, such barriers can only increase socioeconomic inequality in access to reproductive services, as wealthier would-be parents turn to more permissive jurisdictions abroad.
Healthcare professionals should not have to (and are not equipped to) interpret legal surrogacy agreements, particularly in the context of emergency medical situations.
Moreover, the All Families Are Equal Act provides that until the child is seven days old, the surrogate mother must be consulted as a substitute-decision maker in the event that medical treatment is necessary—unless the intended parents and the surrogate have stipulated otherwise in their (purportedly unenforceable) pre-conception agreement. Both Cohen and Feldstein note that healthcare professionals should not have to (and are not equipped to) interpret legal surrogacy agreements, particularly in the context of emergency medical situations. Feldstein argues that this provision undermines the equality thrust of the Bill, as it treats parents who use a surrogate differently from other parents by giving legal weight to the surrogate’s post-birth medical opinions.
Cohen notes further that the “predictability” of the new, streamlined parentage process comes at the price of increased potential for fraud, duress, and undue influence. Without judges scrutinizing pre-conception agreements before declaring parentage, Cohen fears that marginalized women may be coerced into surrogacy. Further, the adoption process may be short-circuited by would-be parents who find an already pregnant woman and subsequently back-date a pre-conception agreement for “traditional surrogacy”. Cohen argues that judicial checks are necessary to determine whether independent legal advice has indeed been provided to all parties and whether the child was conceived through a process that corresponds to the written arrangement.
Given Cohen’s concerns and the underlying rationale for Canada’s criminalization of commercial surrogacy (preventing the bodily exploitation of women), perhaps there are compelling reasons for maintaining a judicial declaration system for establishing parentage. Cohen argues that an administrative scheme like that in Illinois may provide a middle ground between judicial processes and the “mail-in” system, while Feldstein holds that legitimacy could be enhanced by requiring consent to be recorded on a prescribed legal form.
Cohen outlines two final concerns about the legislation: first, that the scheme doesn’t allow children born through surrogacy to have the same privacy in court processes as do adoptees (further undermining the statute’s equality rationales), and second, that the Act permits sperm donation through sexual intercourse. Cohen argues that this legal development, coupled with the recognition that donors are not parents, may allow biological fathers who simply may not want to be legal fathers to “opt-out” of parentage through a pre-conception agreement. Cohen fears, in particular, coercion that may result in a woman signing such an agreement, given the lack of judicial oversight.
Further, this provision creates serious inequality between men and women. Though ovum donors are not legally recognized as mothers, a woman cannot, when a child is conceived through sexual intercourse, simply contract out of parentage by creating a pre-conception agreement that designates her a traditional surrogate. Such a development would be dangerous, as it could leave children with no legal parent!
A simple remedy to this potential coercion and actual gender inequality would be not to recognize sperm donation through sex. At-home, “artisanal” artificial insemination is easy enough to do if both biological parents are serious about “non-traditional” family building, and it is unclear how much true, premediated “sperm donation” occurs via sexual intercourse.
Though ovum donors are not legally recognized as mothers, a woman cannot, when a child is conceived through sexual intercourse, simply contract out of parentage by creating a pre-conception agreement that designates her a traditional surrogate. Such a development would be dangerous, as it could leave children with no legal parent!
As expected, there have also been no shortage of reactionary, irrational critiques of the All Families Are Equal Act. Conservative activist organizations such as REAL Women of Canada and the ARPA fear the end of the heteronormative “traditional family”. They argue, respectively, that multiple parents simply “will not be able to agree” on parenting decisions (irrelevant to the legal status of parentage), and that the statute tears at the legitimacy of traditional families by recognizing “non-families” (a blatantly homophobic statement). The ARPA, further, argues that the Act is full of semantic mistakes; for example, the Act references the unimpeachably male fluid of sperm in the provision rendering donors non-parents, while generally avoiding the gendered term of “father”. Clearly, the ARPA’s legal counsel, in its thinly veiled homophobia, has ignored the fact that legal parentage has always been distinct from biological realities.
Hopefully, the normative value of the All Families Are Equal Act, in addressing many forms of legal discrimination based on family status, will not overshadow the reasoned critiques raised above. This legislation is a step in the right direction for Ontario’s parentage regime. However, it should be amended to allow for, at the very least, enforceability of certain contractual arrangements and a medical decision-making model that maps onto both the legal reality of parentage and the equality goals of the Act itself.
In a diverse society, one can reasonably expect a diversity of child-rearing practices. Whether motivated by culture, religion or skepticism towards Western medicine, some parents opt to treat their children with various “unconventional treatments”. In fact, in the United States, it was found that use of complementary and alternative medicine for children is growing. What are the boundaries within which natural treatment for children resides, from both a legal and a medical perspective? We propose that legal and medical practitioners alike ought to keep an open mind in dealing with natural treatments consented to on behalf of children, while maintaining a healthy dose of skepticism and recognizing the boundaries set by paternalistic state regulation.
Canadian Legal Perspective
The extent to which natural medicine can provide a legally permissible alternative is restricted by the paternalistic voice of the law. Statutory protections for children impose a duty of care on parents to act reasonably in consenting to medical treatment on behalf of their children, to the extent that a refusal of conventional treatment options can qualify as a criminal act, even where alternative treatment plans have been adopted and irrespective of their subjective intent. In the recently decided case of R v Lovett, a mother opted to use natural remedies to treat her seven-year-old son’s throat infection, resulting in his death.
Pursuant to s. 215(1)(a) of the Criminal Code, parents have an obligation to provide the necessities of life for their kids, a duty which Ms. Lovett failed to perform by failing to seek out proper treatment for her child. Further, in R v Naglik Lamer C.J. established that parent’s intent must be addressed through an objective test, given that “as in the law of civil negligence, a duty would be meaningless if every individual defined its content for him or herself according to his or her subjective beliefs and priorities”.
The law sets a high bar for a parent’s duty to ensure their child’s well being. The withdrawal of consent to conventional treatment risks criminal action if the child suffers bodily harm as a result. || (Source: Alex Proimos // Flickr)
The criminal justice system can also hold a parent liable for criminal negligence resulting in bodily harm or death of the child. The court in Lovett makes the distinction that, while similar to s. 215, criminal negligence elevates the offence: the departure from reasonable conduct is “more than just “marked” but rather “marked and substantial””. Such a departure, as stated by the court in R v Tutton, gives rise to an inference that the parents had at least some awareness of the risks or were willfully blind to them. If convicted under this head of criminal liability, the parent can face life imprisonment, while a s. 215 conviction carries a maximum sentence of five years. The overarching theme of these cases is that the price to pay can prove rather steep for choosing to treat one’s child with natural remedies in the stead of conventional medicine.
However, it is critical to discern tolerated alternatives from criminal acts. Surely, resorting to natural treatment will not always deprive a child of the necessaries of life. In fact, natural remedies may well provide many benefits by reason of health, religion or otherwise. Our goal is to raise the important questions that parents ought to pose, as the correct answers to such questions are often context-dependent.
The Medical Perspective
Medical practice is moving away from a paternalistic doctor-patient relationship to one that empowers patients to actively participate in important decisions regarding their care. More and more, doctors are giving some deference to parents who reject conventional medicine and prefer to use natural remedies for their children, and for good reason: in many cases, such remedies do work in treating a variety of ailments.
For example, aspirin is derived from bark of the willow tree, since traditional users noted its effectiveness in relieving pain and fever. Many years of study validated this anecdotal evidence, while demonstrating that the benefits of taking aspirin to treat particular ailments outweighed any adverse effects. To this day, much of Western medicine’s therapeutic arsenal is derived from such natural products that have been proven satisfactorily safe and efficacious. In fact, natural medicine is considered a direct pipeline to science-based medicine, with natural remedies that demonstrate value in properly controlled studies being actively developed into commonly used medications by the pharmaceutical industry.
On Saturday, February 11th, the McGill Journal of Law and Health hosted its ninth annual Colloquium Event. Held in the Moot Court, the event titled “Access and Equity: Indigenous Health and Law in Canada” featured two panels of experts and activists who regularly engage with First Nations peoples and the challenges they face accessing healthcare in Canada.
The morning panel featured Dr. Cindy Blackstock, PhD, Professor Larry Chartrand, and Dr. Janet Smylie, MD, MPH. The discussion centred on the systemic and social barriers to equitable healthcare for First Nations peoples.
Dr. Blackstock discussed the dissonance between the Crown’s spoken intentions to provide aid to First Nations communities and the repeated use of technicalities to defeat cases before the court can address the merits. In particular, she cited an instance where the Ministry of Indian Affairs failed to provide emergency aid funding for suicide prevention programs because the requests came at an awkward time in the funding cycle. Of the $200M needed, only one third – $60.38M – made it to the communities in desperate need of help.
“If it’s not good enough for the Canadian Human Rights Tribunal, why is it good enough for you?” –Dr. Cindy Blackstock on Parliament’s excuses for inaction on First Nations issues
Next, Prof. Larry Chartrand offered a critical perspective on Hamilton Health Sciences Centre v. D.H., clarifying the contentious points as regards the application of s. 35 Aboriginal Rights. Chartrand argued that Western interpretations and applications of the law tend to ignore the collective nature of Aboriginal Rights so as to threaten their independence and render them meaningless. In fact, the imposition of Western notions of the “best interests of the child” inherently denies the sovereignty of First Nations peoples and the principles of First Nations law—such as the Haudenausonee nation’s core tenet to act in the best interests of their children. In the spirit of reconciliation, Chartrand asked neither agreement or even endorsement, only understanding, trust, and respect for First Nations peoples’ self-determination in healthcare.
Dr. Janet Smylie, as a practicing physician, recounted her first-hand experiences with the injuries and deaths suffered by First Nations patients due to negligence motivated by racist assumptions among hospital staff. Smylie emphasized the need for intersectional approaches to law and healthcare, pointing to systemic, epistemic, and attitudinal racism as predominant barriers to the equitable provision of health services. She cited the tragic Brian Sinclair case and the demonstrable failure to provide emergency interventions for First Nations patients as examples of death by discrimination. To combat the underlying prejudicial effects of colonialism on the health of First Nations peoples, hospitals and staff in Canada must implement anti-racist training and practices to account for unconscious bias and provide more equitable care.
After a short lunch, the afternoon panel featured Mr. Normand D’Aaragon, Dr. Christopher Lalonde, PhD, and Dr. Ronald Niezen, PhD. The discussion centred on the causal relationships underlying the high rates of suicide among many First Nations communities, and means of addressing this crisis.
Mr. Normand D’Aragon opened the afternoon with a discussion of his work helping First Nations families heal the wounds of intergenerational trauma due to a history of colonial violence and oppression. D’Aragon relayed his experiences working with two families. The first family, he said, had lost their eldest son to suicide, and feared for the well-being of their second. He traced their family’s story to the grandmother’s two brothers, who never returned from residential schools. Future sons in the family, he said, were deprived of their individuality as a result of the unresolved grief over the ancestral loss of life. Another case concerned a family in which a girl who attempted suicide had lost three cousins and an uncle to self-harm. D’Aragon traced this grief back to the trauma of the great grandparents, who lost five children in infancy due to toxic water on the reserve and neglectful treatment at the hospital.
Dr. Christopher Lalonde presented his team’s work quantifying the suicide crisis among First Nations communities so as to identify pain points and causation in an effort to direct and distribute interventions that will result in healing for the affected communities. Among other misrepresentations, Lalonde dispelled the implication conveyed through the media that being of First Nations heritage is itself a risk factor for suicidal ideation, an idea he described as “insulting and clearly false”. In fact, First Nations communities show immense variability in suicide rates by health region and census region, with over half showing a 0 rate of suicide. The data collected by Lalonde’s team suggest an inverse correlation between the suicide rate and a variety of social factors, including cultural continuity, inclusion of women in government, political autonomy, and access to mentorship and education services. Communities proved healthiest when granted the autonomy to preserve and promote traditional practices while navigating a clear and unified path towards the future.
“Give Cindy Blackstock all the money she ever asks for.” –Dr. Christopher Lalonde on activism for First Nations peoples access to medical care
Dr. Ronald Niezen concluded the panel by recounting his experience working with First Nations communities, and his observations as to the social patterns underlying the development of suicide crises. In the six months he spent working with intervenors on the reserve, there were 144 reported interventions and 9 suicides. Niezen explained that suicide clusters like this one emit a certain social influence that encourages mutual action, and that the ideation of suicide spreads throughout the community as a response to colonial trauma. He also expressed concerns that the publicity given to interventions creates a tension between the call to action for relief funding and the risk of stereotyping First Nations peoples in the public perception.
In 2000, the Ontario legislature introduced a series of amendments (Brian’s Law) to the Mental Health Act and the Health Care Consent Act, broadening the criteria for civil committal and creating a community treatment order (“CTO”) regime in Ontario. Motivated by the murder of media personality Brian Smith by a man suffering from untreated schizophrenia, the CTO regime is a form of compulsory psychiatric treatment imposed on individuals fulfilling prescribed criteria by their doctors. Patients, usually suffering from schizophrenia or related disorders, are ordered to comply with their treatment plan and face the possibility of involuntary hospitalization if they fail to agree to or to comply with the order.
CTO regimes and other forms of out-patient committal have attracted considerable legislative attention in recent decades. As mental health systems shift away from large-scale institutionalization, community treatment is seen by some as a favorable middle ground that provides people with the assistance they require without subjecting individuals to onerous involuntary detention. Detractors, however, point out that attaching the looming threat of committal to treatment plans risks broadening the scope of forced treatment. The delicate balance that needs to be struck between individual autonomy and enthusiasm for treatment in this type of regime invites constitutional scrutiny.
The central issues before the Ontario Court of Appeal included whether the applications judge misapplied the principles of fundamental justice, failed to properly consider the purpose of the legislation, or erred in his analysis of ss. 9, 10, 12 and 15 of the Charter.
The Principles of Fundamental Justice
The Court of Appeal affirmed the trial judge’s finding that the impugned provisions were not arbitrary, overbroad nor grossly disproportionate. In coming to this conclusion, the Court placed a great deal of emphasis on the fact that the CTO scheme is only applied following a highly specific assessment of a patient’s condition and treatment needs, a factor tied to the public health and public safety goals of the legislation. The personalized assessment process was found to minimize any risk that the application of CTOs would be arbitrary, overly broad or grossly disproportionate.
The Court also endorsed the trial judge’s refusal to delve too deep into the policy rationale of the scheme in light of contradictory evidence. The Court held that the available evidence reasonably supported legislative action and did not support a finding of arbitrariness, overbreadth or gross disproportionality.
The Legislative Purpose
The appellants submitted that the purpose of Brian’s Law was to protect public safety, and as such could not be constitutionally valid since there was no correlation between mental illness and violence. The Court of Appeal rejected this argument on the basis that the public safety purpose cannot be viewed in isolation from the purpose to improve mental health treatment.
The CCLA argued that improved treatment could not be a valid legislative objective because the treatment offered in the form of a CTO is coerced, in the sense that if a patient does not consent they face involuntary committal. The Court found this argument insupportable, distinguishing the effects of forced treatment from the purpose of improved treatment.
Further, they noted that coerced treatment can be a valid legislative objective in some circumstances and that since individuals subject to the CTO will meet the criteria for involuntary committal, the less restrictive CTO scheme does not amount to improperly coerced consent.
Other Sections of the Charter
The appellants’ arguments related to ss. 9, 10 and 12 replicated their section 7 arguments and were quickly dismissed by the Court of Appeal.
The Court of Appeal also agreed with the application judge that Brian’s Law was not discriminatory against those with mental disabilities for the purpose of s. 15(1). The detailed personal assessment provided for in the CTO scheme was held to be the “antithesis” of discrimination in the sense that nothing about the orders are based on presumed characteristics and the patient’s views are given priority in the assessment. The fact that this assessment process itself may be informed by discrimination in its application was rejected for a lack of factual basis.
Thompson provides a strong endorsement of the constitutionality of CTO schemes. The fact that orders are issued further to an individualized assessment, and purport to serve not only the interests of the broader community but also of the patient, appears to have insulated the legislation from constitutional violation. However, CTOs continue to generate controversy across Canada as provincial health systems grapple with whether and how to approach their implementation. Amid a rapidly growing number of CTOs in effect in Ontario, some experts warn against potential abuses. This case may move the discussion around CTOs from the constitutional rights of patients to the design and implementation of the scheme.