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The Health Care Directives and Consequential Amendments Act

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S.M. 1992, c. 33

The Health Care Directives and Consequential Amendments Act

(Assented to June 24, 1992)

WHEREAS Manitoba law recognizes that mentally capable individuals have the right to consent or refuse to consent to medical treatment;

AND WHEREAS this right should also be respected after individuals are no longer able to participate in decisions respecting their medical treatment;

NOW THEREFORE HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

INTERPRETATION

Definitions

1           In this Act,

"court" means the Court of Queen's Bench; («tribunal»)

"directive" means a health care directive made in accordance with this Act, and includes a directive made before this Act comes into force; («directives»)

"health care decision" means a consent, refusal to consent or withdrawal of consent to treatment; («décision»)

"maker" means the maker of a directive; («auteur»)

"proxy" means a person appointed in a directive to make health care decisions on behalf of the maker of the directive; («mandataire»)

"treatment" means anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other health-related purpose, and includes a course of treatment. («traitement»)

Capacity

2           For the purpose of this Act, a person has capacity to make health care decisions if he or she is able to understand the information that is relevant to making a decision and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

Act subject to Mental Health Act

3           This Act is subject to The Mental Health Act and where there is a conflict between this Act and The Mental Health Act, The Mental Health Act prevails.

DIRECTIVES

Who may make a directive

4(1)        Every person who has the capacity to make health care decisions may make a health care directive.

Age of capacity

4(2)        In the absence of evidence to the contrary, it shall be presumed for the purpose of this Act

(a) that a person who is 16 years of age or more has the capacity to make health care decisions; and

(b) that a person who is under 16 years of age does not have the capacity to make health care decisions.

Presumption re age

4(3)        In the absence of evidence to the contrary, it shall be presumed for the purpose of this Act that a person who has made a directive made it when 16 years of age or more.  

Directive may express decisions or appoint proxy

5           A directive may express the maker's health care decisions or may appoint a proxy to make health care decisions on the maker's behalf, or both.

Directive effective during incapacity

6(1)        A directive becomes effective when the maker

(a) ceases to have capacity respecting a proposed treatment; or

(b) is unable to communicate his or her wishes respecting a proposed treatment;

and continues to be effective for the duration of the incapacity or the inability to communicate.

Capacity at certain times and re certain treatments

6(2)        A person may have capacity respecting some treatments and not others and respecting a treatment at one time and not at another.

Effect of decision in directive

7(1)        A health care decision expressed in a directive is as effective as if made by the maker when the maker had capacity to make the decision.

Effect of decision made by a proxy

7(2)        A health care decision made by a proxy on behalf of a maker in accordance with a directive and this Act is as effective as if made by the maker when the maker had capacity to make the decision.

Directive must be in writing

8(1)        A directive must be in writing and dated.

Execution

8(2)        A directive must be signed

(a) by the maker; or

(b) by some other person at the direction and in the presence of the maker, in which case

(i) the person signing shall not be a proxy appointed in the directive or a proxy's spouse,

(ii) the maker shall acknowledge the signature in the presence of a witness, who shall not be a proxy appointed in the directive or a proxy's spouse, and

(iii) the witness shall sign the directive as witness in the maker's presence.

Revocation

9(1)        So long as the maker has capacity to make health care decisions, a directive may be revoked

(a) by a later directive;

(b) by a later writing declaring an intention to revoke the directive and made in accordance with subsection 8(2); or

(c) by the destruction, with the intent to revoke, of all original signed copies of the directive, either by the maker or by some other person in the presence and at the direction of the maker.

Automatic revocation on divorce

9(2)        Unless a directive expressly provides otherwise, if, after making a directive in which the maker's spouse is appointed as proxy, the maker's marriage is terminated by divorce or is found to be void or declared a nullity by a court in a proceeding to which the maker is a party, the appointment of the spouse as proxy is revoked.

Directives from other jurisdictions

10          A directive made outside Manitoba that complies with the requirements of this Act is deemed to be a directive made under this Act.

Prescribed form of directive

11          The Lieutenant Governor in Council may, by regulation, prescribe a form of directive, but the use of such a form is not mandatory.

PROXIES

Capacity and age of proxy

12          To make a health care decision under this Act, a proxy must be apparently mentally competent and at least 18 years old.

Principles

13          A proxy shall act in accordance with the following principles:

1.

If a directive appointing the proxy expresses the maker's health care decisions, those decisions must be complied with, subject to principle 3.

2.

If the maker's decisions are not expressed in a directive, the proxy shall act in accordance with any wishes that he or she knows the maker expressed when the maker had capacity, and believes the maker would still act on if capable.

3.

If the proxy knows of wishes applicable to the circumstances that the maker expressed when the maker had capacity, and believes the maker would still act on them if capable, and if the wishes are more recent than the decisions expressed in a directive, the wishes must be followed.

4.

If the proxy has no knowledge of the maker's wishes, the proxy shall act in what the proxy believes to be the maker's best interests.

Limitation on proxy's consent

14          Unless a directive expressly provides otherwise, a proxy cannot consent to

(a) medical treatment for the primary purpose of research;

(b) sterilization that is not medically necessary for the protection of the maker's health; or

(c) the removal of tissue from the maker's body, while living,

(i) for transplantation to another person, or

(ii) for the purpose of medical education or medical research.

More than one proxy

15(1)       If two or more proxies are appointed by a directive and the directive does not indicate whether they are to act jointly or successively, they are deemed to be appointed to act successively, in the order named in the directive.

Joint proxies

15(2)       Unless the directive provides otherwise, if two or more proxies are appointed to act jointly rather than successively,

(a) the decision of the majority is deemed to be the decision of all; and

(b) if one or more of them has died or is unwilling or, after reasonable inquiries, unavailable to make a health care decision, the remainder of them may make the decision and the decision of the majority of the remainder is deemed to be the decision of all.

Disagreement between joint proxies

15(3)       If two or more proxies who are appointed to act jointly disagree about the making of a health care decision and there is no majority decision, the proxy first named in the directive may make the health care decision on behalf of the maker.

No delegation

16          A proxy may not delegate the authority to make health care decisions.

Review of misconduct by a proxy

17(1)       When the court, on application, is satisfied that a proxy is not acting in good faith in accordance with this Act, the court may, by order,

(a) suspend or terminate the proxy's appointment and rescind any health care decision made by the proxy; and

(b) except where the directive appoints at least one other proxy who can continue to act, substitute a decision of its own for any health care decision made by the proxy.

Limitation on court's decision

17(2)       When the court substitutes its own decision for that of a proxy under clause (1)(b), it shall do so in accordance with the principles described in section 13.

Right of proxy to health information

18          Notwithstanding any restriction, statutory or otherwise, respecting the disclosure of confidential health information, but subject to any express limitation in the directive, a proxy has the right to be provided with all the information necessary to make informed health care decisions on behalf of the maker.

Protection from liability for proxy

19          No action lies against a proxy

(a) by reason only of having acted in good faith in accordance with this Act; or

(b) for failing to make health care decisions on behalf of the maker.

GENERAL PROVISIONS

Instructions to counsel

20          In any proceeding in which the capacity of a maker to make health care decisions is at issue, the maker is deemed to have capacity to instruct counsel.

No onus to inquire about directive

21          No person is required to inquire into the existence of a directive or of a revocation of a directive.

Protection from liability re treatment

22          No action lies against a person who administers or refrains from administering treatment to another person by reason only that the person

(a) has acted in good faith in accordance with the wishes expressed in a directive or in accordance with a decision made by a proxy; or

(b) has acted contrary to the wishes expressed in a directive if the person did not know of the existence of the directive or its contents.

Presumption of validity of directive

23          A directive that has been acted upon and

(a) that is not executed in accordance with this Act;

(b) that has been revoked; or

(c) that was made by a person who did not have the capacity to make health care decisions;

is deemed to be valid for the purposes of this Act if the person who acted upon it had no reason to believe that the directive was not in fact executed in accordance with this Act, was revoked or was made by a person who did not have capacity.

Gift to witness, proxy or person signing for maker

24          The entitlement of a person or his or her spouse to any of the following:

(a) a beneficial devise, bequest, or other disposition or appointment of or affecting real or personal property under the will of the maker of a directive;

(b) the proceeds of an insurance policy on the life of a maker; or

(c) a share of a maker's estate under The Intestate Succession Act;

is not void by reason only that the person has signed a directive on the maker's behalf, has been a witness to the making of a directive or has acted as the maker's proxy.

Existing rights not abrogated

25          Nothing in this Act abrogates or derogates from any rights or responsibilities conferred by statute or common law.

No presumption arises from lack of directive

26          No inference or presumption shall arise by reason only that a person has not made or has revoked a directive.

Offence and penalty

27          Any person who, without the maker's consent, willfully conceals, cancels, obliterates, damages, alters, falsifies or forges a directive or a revocation of a directive is guilty of an offence and liable on summary conviction to a fine of not more than $2,000., or to imprisonment for a term of not more than six months, or both.

Consequential amendments, C.C.S.M. c. M110

28(1)       The Mental Health Act is amended by this section.

28(2)       Section 1 is amended by adding the following definition in alphabetical order:

"proxy" means a proxy appointed in a health care directive made in accordance with The Health Care Directives Act, but does not include a proxy to the extent he or she is restricted, by the terms of the directive, from making treatment decisions that fall within the scope of this Act; («mandataire»)

28(3)       Clause 22(1)(b) is repealed and the following is substituted:

(b) that it would be in the best interests of an involuntary patient in a psychiatric facility to be hospitalized in another jurisdiction and the patient or, where the patient lacks the capacity to consent,

(i) the patient's proxy, or

(ii) if there is no proxy who is apparently mentally competent and is available and willing to act, the patient's nearest relative

consents to the transfer to the other jurisdiction;

28(4)       Subsection 23(2) is amended by striking out "to the patient's nearest relative" and substituting "to the patient's proxy or, if there is no proxy, to the patient's nearest relative."

28(5)       Subsection 23(3) is amended by striking out "also notify the person's nearest relative" and substituting "also notify the person's proxy or, if there is no proxy, the person's nearest relative".

28(6)       Subsection 24(5) is amended

(a) in the section heading by striking out "nearest relative" and substituting "proxy or nearest relative";

(b) in clause (a) by striking out "to the patient's nearest relative" and substituting "to the patient's proxy or, if there is no proxy, to the patient's nearest relative"; and

(c) in clause (b) by striking out "and the patient's nearest relative" and substituting "and the patient's proxy or, if there is no proxy, the patient's nearest relative".

28(7)       Subsection 24(7) is amended by striking out "and his or her nearest relative" and substituting " and the patient's proxy or, if there is no proxy, the patient's nearest relative".

28(8)       Clause 24.1(1)(b) is repealed and the following is substituted:

(b) in the case of a patient who has no guardian,

(i) the patient's proxy, or

(ii) if there is no proxy, the patient's nearest relative.

28(9)       That part of subsection 24.1(2) preceding clause (a) is amended by striking out "other than the Public Trustee," and substituting "other than the patient's proxy or the Public Trustee,".

28(10)      Subsection 24.1(5) is amended by striking out "other than the Public Trustee," and substituting "other than the patient's proxy or the Public Trustee,".

28(11)      The following is added after subsection 24.1(5):

No onus to inquire about validity of directive

24.1(5.1)   If treatment decisions are made on a patient's behalf by his or her proxy, a physician is not required to inquire into the validity of the directive appointing the proxy.

28(12)      The following is added after subsection 24.1(6):

No onus to inquire into existence of proxy or directive

24.1(6.1)   Despite subsection 24.1(6), a physician is not required to inquire whether a proxy has been appointed or to inquire into the existence of a directive or of a revocation of a directive.

28(13)      Subsection 25(1) is amended by striking out "if the patient's nearest relative has refused to consent to the treatment" and substituting "if the patient's proxy or nearest relative has refused to consent to the treatment".

28(14)      Subsection 26(2) is repealed and the following is substituted:  

Consent

26(2)       A certificate of leave is not effective without the patient's consent or, where the patient lacks the capacity to consent, without the consent of

(a) the patient's proxy; or

(b) if there is no proxy who is apparently mentally competent and is available and willing to act, the patient's nearest relative.

28(15)      Subclause 26(4)(c)(ii) is amended by striking "inform the patient's nearest relative" and substituting "inform the patient's proxy, if any, and the patient's nearest relative".  

28(16)      Subsection 26.5(4) is repealed and the following is substituted:

Proxy or nearest relative a party

26.5(4)     If a patient's proxy or nearest relative has refused consent to treatment on the patient's behalf under subsection 24.1(1), the proxy or the nearest relative, as the case may be, is a party in any application for authority to give treatment to the patient.

28(17)      Clause 26.12(1)(c) is amended by striking out "to the person's nearest relative" and substituting " to the person's proxy, if any, and to the person's nearest relative".

28(18)      Subsection 80(1.2) is amended by striking out "When" at the beginning of the subsection and substituting "Subject to subsection (1.2.1), when".

28(19)      The following is added after subsection 80(1.2):

Limitation

80(1.2.1)   If a person described in clause (1)(b) or (d) has made a health care directive in accordance with The Health Care Directives Act, the Public Trustee may not exercise the power to consent to proposed treatment or care on that person's behalf under clause (1.2)(c) in circumstances where

(a) the directive appoints a proxy to exercise that power; or

(b) the directive expresses a decision of that person respecting the proposed treatment or care.

Consequential amendments, C.C.S.M. c. H180

29(1)       The Human Tissue Act is amended by this section.

29(2)       Section 1 is amended by adding the following definition in alphabetical order:

"proxy" means a proxy appointed in a health care directive made in accordance with The Health Care Directives Act, but does not include a proxy to the extent he or she is restricted, by the terms of the directive, from making decisions that fall within the scope of this Act; («mandataire»)

29(3)       Subsection 3(1) is repealed and the following is substituted:

Direction on behalf of deceased person

3(1)        Where a person who dies

(a) has not made a direction under section 2;

(b) has made a direction under section 2 that by virtue of clause 2(3)(b) cannot be acted upon; or

(c) is under 16 years of age;

a person described in subsection (1.1) may direct that the deceased person's whole body, or any tissue or specified tissue from the deceased person's body, may be used for therapeutic purposes or for purposes of medical education or medical research.

Direction by proxy or nearest relative

3(1.1)      A direction may be given under subsection (1)

(a) by the deceased person's proxy, if the deceased person was 18 years of age or over at the time of death;

(b) if there is no proxy authorized to act or the proxy is unavailable, by the deceased person's nearest relative; or

(c) if there is no nearest relative or the nearest relative is unavailable, by the person lawfully in possession of the body or the Inspector of Anatomy, as the case may be.

29(4)       Subsection 3(3) is repealed and the following is substituted:

Direction on behalf of dying person

3(3)        Where a physician is of the opinion that a person

(a) who has not made a direction under section 2; or

(b) who has made a direction under section 2 that by virtue of clause 2(3)(b) cannot be acted upon;

is incapable of making a direction under section 2 and that the person's death is imminent and inevitable, a person described in subsection (3.1) may direct that the dying person's whole body, or any tissue or specified tissue from the dying person's body, may be used after death for therapeutic purposes or for purposes of medical education or medical research.

Direction by proxy or nearest relative

3(3.1)      A direction may be given under subsection (3)

(a) by the dying person's proxy, if the dying person is 18 years of age or over; or

(b) if there is no proxy authorized to act or the proxy is unavailable, by the dying person's nearest relative.

29(5)       Subsection 4(2) is repealed and the following is substituted:

Request after consideration

4(2)        A physician who determines that it is appropriate to request permission under subsection (1) shall, as soon as practicable after the death of the person but subject to subsection (3), request permission to use the body of the deceased person for therapeutic purposes, or to remove tissue from the body to be used for therapeutic purposes,

(a) from the deceased person's proxy if the deceased person was 18 years of age or over at the time of death; or

(b) if there is no proxy authorized to act or the proxy is unavailable, from the deceased person's nearest relative.

29(6)       Subsection 8(3) is repealed and the following is substituted:

Participation in transplant prohibited

8(3)        A physician who participates in

(a) a determination of death under subsection (1); or

(b) the withdrawal or withholding of life-prolonging medical treatment in accordance with a health care directive made under The Health Care Directives Act;

in respect of a person from whose body tissue is to be removed for a proposed transplant shall not participate in the transplant operation.

C.C.S.M. reference

30          This Act may be cited as The Health Care Directives Act and referred to as chapter H27 of the Continuing Consolidation of the Statutes of Manitoba.

Coming into force

31          This Act comes into force on a day fixed by proclamation.