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Stillborn autonomy : why the Representation Agreement Act of British Columbia fails as advance directive legislation Rush, Joan L.

Abstract

An advance directive is an instruction made by a competent person about his or her preferred health care choices, should the person become incapable to make treatment decisions. Legal recognition of advance directives has developed over the last half century in response to medical advances that can prolong the life of a patient who is no longer sentient, and who has decided to forego some or all treatment under such circumstances. Two types of directive have emerged in the law: an instructional directive, in which a person sets out treatment choices, and a proxy directive, which enables the person to appoint a proxy to make treatment decisions. Development of the law has been impeded by fear that advance directives diminish regard for the sanctity of life and potentially authorize euthanasia or assisted suicide. In Canada, this fear explains the continued existence of outdated criminal law prohibitions and contributes to provincial advance directive legislation that is disharmonized and restrictive, in some provinces limiting personal choice about the type of advance directive that can be made. The British Columbia Representation Agreement Act (RAA)1 is an example of such restrictive legislation. The RAA imposes onerous execution requirements, is unduly complex and restricts choice of planning instrument. Respect for patient autonomy requires that health care providers honour patients' prospective treatment preferences. Capable persons must have ready access to a choice of health care planning instruments which can be easily executed. B.C. should implement advance directive legislation that meets the needs and respects the autonomy of B.C. citizens. The Criminal Code must be amended to eliminate physicians' concern about potential criminal liability for following an advance directive. Advance directive legislation across Canada should be harmonized. Finally, health care providers should receive training on effective ways to communicate with patients about end-of-life treatment decisions to ensure that patients' health care choices are known and respected.

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