Law & Orderlies

Recently a local family was going through a health crisis.

A loved one (let’s call her ‘V’) became ill and required immediate hospitalization. Given the demands on hospital resources, this meant a couple of nights in a make-shift ward in emergency.

Initially things did not go well. V’s condition deteriorated rapidly and she was moved into an intensive care unit. She was largely unresponsive due to a pesky little acute infection that her body was no longer well equipped to deal with. She had some brief moments of alertness but that was usually the result of some stimulus-pain.

It was tough for the family.

Taking a break from his watch, an elderly family member contacted his lawyer. He had been asked about a Do Not Resuscitate order (DNR for convenience), whether there was one on file, were V’s wishes known and what would ‘he’ want to do ‘should it come to that’.

Cue Family Meeting.

When stuff happens, it happens fast and you are usually not ready for it. How do older, exhausted, overwhelmed and heartbroken family members cope with this? Fortunately in this case, they reached out.

Like most stuff in life, things go better when we talk about it. Talking about it early is usually good and reminding yourself to talk about it regularly is good too. Writing some things down can be good. This family really didn’t do much of that.

So, what followed was a shotgun of earnest and well meaning opinions-What would V want? The opinions were based on small dribbles of facts, layered with guess work and even-dare I say-some degree of piety. This family clearly liked each other, nobody wanted a fight and they came up with something. This isn’t always normal.

Fortunately for them, V’s organs began to grind into gear, coaxed by the day to day heroism of the ICU, and the family was told that the DNR conversation was no longer urgent but was something to think about. Good advice.

This is what people are talking about when they are talking about Living Wills or Advance Care Directives. They can express what you would like to do about your future care, much like your Will expresses what you would like to do with your property. Not fun stuff for most people, but taking the time can really help out the people who love you down the road.

In these circumstances, some of the questions the family needed to consider were: Why is the hospital asking; what is the answer; how do we know that is the answer and who should be doing the answering?

All complex questions for the best of circumstances, very difficult ones in the stress of an emergency and if the loved-one had not done some preparing in advance.

The Health Care Consent Act does set out a hierarchy of substitute decision makers, but for this case let’s assume that V had thought about these eventualities and done something about it.

In Ontario, The Substitute Decisions Act discusses the Power of Attorney (POA) for Personal Care. This is different from a Power of Attorney you or your loved-ones may have for property guardianship, so don’t assume one is in place just because there is a ‘Power of Attorney’.

The POA for Personal Care will appoint a ‘substitute decision maker’ who will have decision making authority when the grantor becomes incapable of exercising authority on their own behalf. The POA for Personal Care may contain specific conditions outlining the circumstances that activate it, can limit the scope of the personal care decision and must meet some technical requirements. It does not need to be in a specific form.

The POA for Personal Care may addresses advanced care wishes and the substitute decision maker in one recognized document. In many situations it makes sense to address the advanced care wishes outside of the actual POA for Personal Care. Consulting with a lawyer can help you understand what best suits your wishes.

With a POA for Personal Care in place and an advanced care directive created, the family is now in a position to know who has authority to make the decision and may have guidance should that document consider a DNR order.

So, if we assume that V had a POA for Personal Care, nominated a substitute decision maker and expressed that she did not wish to be resuscitated, do we have our answer?

Maybe. None of us has a crystal ball and we cannot foresee the exact circumstances that fate will place us in. For this reason, in Ontario, the substitute decision maker must consider the actual present condition and state of health of the patient before communicating the patient’s wishes. No matter what helpful evidence may be in place, it’s still a decision and it’s still hard.

Another question to consider is: why is the hospital asking? On the face of it, it certainly makes a lot of sense that the hospital should ask. They are providing care after all and they want to respect the wishes of the patient. In most treatment circumstances, consent is required. In this case, the circumstances suggest that the hospital was right to ask and they were supportive the entire way.

However, the very best of intentions often take the form of policies that are triggered by events or circumstances that may not be pertinent to the patient, may not be understood by the designate or health team or may conflict with legislation. If you are uncomfortable with what you are being asked or told by the hospital, you should consider consulting with a lawyer knowledgeable in these matters.

V is home now and, as you might expect, has no memory of her time spent in ICU. She is cogent and well card for and definitely has strong views on a DNR order. As it turns out, her family wasn’t too far off, but V was amazed that there was even a debate at all.

Finally, having the opportunity to express her views seemed a far less troubling conversation for V than it was for the family-for many people, this can be an affirming and empowering conversation.

The expressions here are not intended to be relied upon as legal advice.
Paul is a lawyer in Ontario and has been a member of the Ontario Bar for 25 years. He has worked in the health sciences industry and law has a decade of experience working with healthcare stakeholders building community healthcare partnerships.
Paul can be reached at or at Paul Riddles Law, 75 Young St., Hamilton, ON, L8N 1V4