Personal Directives Act Dykeland Lodge and Windsor Elms June 3 rd, 2010

Background Personal Directives Act received Royal Assent on May 27, 2008 Act came into force April 1, The Act and Associated Regulations are online at: –

Purpose of the Act The Personal Directives Act will Allow Nova Scotians to prepare for the possible onset of incapacity (either temporary or permanent) by expressing in writing their instructions or wishes for future personal care decisions. Help those individuals without a Personal Directive who become incapacitated by providing a means to determine a substitute decision maker for some types of personal care decisions, i.e. health care, continuing care home placement, home care services.

Personal Care Decisions Include Those Regarding: * health care* social activities * nutrition* hygiene * hydration* safety * shelter* comfort * residence* recreation * clothing* support services

What does the Act allow for? The PDA allows an individual to make a Personal Directive: appointing one or more delegates to make future decisions about personal care matters on their behalf, and/or setting out instructions, values, beliefs or wishes about what or how personal care decisions should be made in the event that s/he becomes incapacitated. The Act also provides a hierarchy of substitute decision makers for some personal care decisions, i.e. health care, home care and placement to a continuing care home, for individuals who have not made a Personal Directive

Why do we need this Act? Provides protection for: Clients- protecting their rights and wishes Family decision makers- clearer guidance and legal protection Health Care Providers and Administrators- giving clearer direction for getting consent for services, much more structure and accountability, legal protection, assistance with family conflict resolution

Planning for The Future A Personal Directive is just one of many planning documents a person may use to ensure their wishes and values related to life decisions are formally documented and communicated. Other mechanisms may include: -Medical Proxy made under the Medical Consent Act prior to the Personal Directives Act taking effect - April 1.10 (PDA Section 22(2)) * Note: The MCA will be repealed on implementation of the PDA. -Enduring Power of Attorney -Wills Under the new Act, valid directives made in other jurisdictions are recognized in Nova Scotia (PDA Section 24)

Personal Directive as a Document Any capable Nova Scotian can make a personal directive, including a mature minor. It must be signed, dated and witnessed. The witness cannot be: a delegate; spouse of a delegate; person who signs on behalf of the maker or spouse of same. You do not require a lawyer to make a personal directive. A personal directive is considered a legal document if it meets the above noted criteria. A personal directive takes effect when the person who created the personal directive becomes incapacitated.

Capacity to Consent to Care/Treatment “capacity” with respect to the Personal Directives Act, means the ability to understand the information that is relevant to the making of a personal care decision and the ability to appreciate the reasonably foreseeable consequences of a decision or lack of decision. PDA section 2(a) Differentiate between: - assessing capacity to consent for a specific treatment or service. - assessing capacity on a more global basis. Challenges such as fluctuating capacity will continue to arise. Capacity to consent may fluctuate over time e.g. dementia patients do not lose their capacity to consent to care at one moment in time. Also, a person at a given point in time, may have the capacity to make some decisions (e.g. have a flu shot) and not others (e.g. a high risk surgery).

What is capacity to consent? Assessing a client’s capacity to consent for services/interventions is narrative in nature; it is a conversation and a series of questions posed to the client. There are distinctions between competency and capacity. Generally speaking: competency refers to an individual’s ability to manage financial and estate affairs; and capacity refers to an individual’s ability to understand the nature of the personal care being proposed, the capacity to accept the proposed personal care, and the capacity to appreciate the consequences of accepting or not accepting the proposed personal care.

Duties of Health Care Providers Health care providers includes (but is not limited to) licensed/ registered health care professionals and/or administrators of a health care facility or a continuing care home or persons authorized by the Minister of Health or Minister of Community Services to perform needs assessments. Key duties: Before seeking a health care decision from a delegate or a statutory decision maker for a person who lacks capacity, the health care provider makes a reasonable effort to determine if individual has as personal directive and if yes, requests a copy to include it in the health record (PDA Section 18) Follow clear instructions in personal directive Follow delegate’s instructions If there is no personal directive, follow instructions of the statutory decision maker Emergency exception applies (PDA Section 19)

Substitute Decision Makers Substitute Decisions Makers Statutory Decision Maker Delegate No Personal Directive Delegate Appointed Legally Authorized SDM (Proxy, Court Appointed Guardian) Nearest Relative Hierarchy Public Trustee Personal Directive Exists Delegate Appointed in Personal Directive SDM must make decisions based on knowledge of wishes, values or beliefs or if not known, in the person’s best interests.

SDM Hierarchy and Nearest Relative Requirements Under PDA Guardian with the Authority to Make Such Decisions – Court Appointed Nearest Relative Spouse Child Parent Person standing in loco parentis Sibling Grandparent Grandchild Aunt or Uncle Niece or Nephew Other Relative Public Trustee Hierarchy Has been in contact with person over proceeding 12 month period Is willing to assume the responsibility for making the decision Knows of no other person of higher rank in priority who is able and willing to make the decision; and Makes a statement in writing certifying the relationship to the person and the facts and beliefs set out in the clauses a) to c). (PDA Section 14 (2)) Nearest Relative Requirements

Protections and Limitations Key protections: - Termination/revocation -Offences -Court powers -Liability protection (Good Faith clause) (PDA Section 20) -Creation of a Personal Directive Cannot Be Coerced * Limitations: -A personal directive does not permit an illegal act (PDA Section 5(3)) -An appointed substitute decision maker or delegate must comply with the requirements set out in the Personal Directives Act with respect to their role and responsibilities (PDA Section 15(4)) -A personal directive will not assure the maker access to services that are above and beyond established program parameters (PDA Section 21)

Benefits Implementation of the Personal Directives Act will: Fill long-standing gaps in legislation to address informed consent issues for placement and home care services and health care outside of hospital;Fill long-standing gaps in legislation to address informed consent issues for placement and home care services and health care outside of hospital; Allow for Nova Scotians to be legally clear about their wishes related to their care and personal decisions once they no longer have the capacity to do so; Allow for Nova Scotians to be legally clear about their wishes related to their care and personal decisions once they no longer have the capacity to do so; Provide clarity to health care workers in working with delegates/ substitute decision makers (families); and Provide clarity to health care workers in working with delegates/ substitute decision makers (families); and Ensure documented evidence of informed consent Ensure documented evidence of informed consent

What this means for the Sector Identification & Declaration of SDM for Those Clients who Lack Capacity to give Informed Consent New ClientsExisting Clients Dept of Health licensed/approved homesAs of April 1, 2010By March 31, 2011 Continuing Care Home Care clientsAs of April 1, 2010By March 31, 2011

In a Nutshell As of April 1.10 ~  Personal Directives will be recognized as legal documents and deferred to with respect to direction related to personal health care decisions on/or after April 1, 2010  Informed Consent must be formally captured (documented) for all clients  Capacity to consent must be assessed by the health care provider as a key element of delivering health care services ~ Capacity to Consent is Assumed Until Otherwise Proven  If capacity to consent is suspect, the legally appropriate substitute decision maker must be engaged to give informed consent for those clients who cannot consent on their own behalf

Impact Considerations- Next Steps Organizations/Facilities Should Review:  Current Practices/Procedures  i.e. Documents such as forms or guidelines  Current Policies  Staff Educational Requirements  Communication Requirements  Specific Implementation Strategies

Potential PDA Tool Kit Training Information – Presentation – FAQs Forms and Tools – Consent Form – Capacity To Consent Assessment Tools (completed only is capacity to consent is suspect) Capacity to Consent Evaluation Guidelines Capacity to Consent Evaluation From Capacity to Consent Decision Tree Capacity to Consent Information Primer – Substitute Decision Maker Process Support Tools (completed only if client does not have the capacity to consent) Substitute Decision Maker Identification and Determination Form Substitute Decision Maker Declaration Form * Info Primer on Substitute Decision Making Authority Mechanisms Process Flow Diagram Information Related IPTA, HA, and PDA interaction Public Trustee’s Office Material Guidelines Q&As Quick Reference Initiative Information – PDA Fact Sheet – Legislation Statute Regulations

Resources General information related to the Act and the mechanics of developing a personal directive- General information related to the Act and the mechanics of developing a personal directive-