The Health Care Directives Act

The Health Care Directives Act, C.C.S.M. c. H27 (Assented to June 24, 1992) bilingual version (HTML) Table of Contents Section INTERPRETATION 1 Definitions 2 Capacity 3 Act subject to Mental Health Act DIRECTIVES 4 Who may make a directive 5 Directive may express decisions or appoint proxy 6 Directive effective during incapacity 7 Effect of decisions 8 Directive to be written and executed 8.1 Remote witnessing 9 Revocation 10 Directives from other jurisdictions 11 Prescribed form PROXIES 12 Capacity and age of proxy 13 Principles 14 Limitation on proxy's consent 15 More than one proxy 16 No delegation 17 Review of misconduct by a proxy 18 Right of proxy to health information 19 Protection from liability for proxy GENERAL PROVISIONS 20 Instructions to counsel 21 No onus to inquire about directive 22 Protection from liability re treatment 23 Presumption of validity of directive 24 Gift to witness, proxy or person signing for maker 25 Existing rights not abrogated 26 No presumption arises from lack of directive 27 Offence and penalty 27.1 Regulations 28-29 Consequential amendments 30 C.C.S.M. reference 31 Coming into force 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 King'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 or common-law partner, (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 or common-law partner, and (iii) the witness shall sign the directive as witness in the maker's presence. S.M. 2022, c. 24, s. 16 . Remote witnessing 8.1(1) Despite subclauses 8(2)⁠(b)⁠(ii) and (iii), a person authorized under the regulations may, in the manner specified in the regulations, (a) witness the acknowledgment, by the maker, of a signature on a directive signed by a person other than the maker without being in the presence of the maker; and (b) sign a directive as a witness without being in the presence of the maker. Additional wording required 8.1(2) A directive witnessed in accordance with subsection (1) must contain or append any wording required under the regulations. S.M. 2020, c. 25, s. 2 . 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 section 8.1; 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. S.M. 2020, c. 25, s. 2 . 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 or common-law partner 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. S.M. 2022, c. 24, s. 16 . 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. Regulations 27.1 For the purpose of section 8.1, the Lieutenant Governor in Council may make regulations (a) authorizing a person or class of persons to (i) witness the acknowledgment, by the maker, of a signature on a directive signed by a person other than the maker without being in the presence of the maker, and (ii) sign a directive as a witness without being in the presence of the maker; (b) specifying the procedures to be followed for witnessing the acknowledgment, by the maker, of a signature on a directive; (c) if the maker and the witness are in different jurisdictions, deeming a directive to be made in a particular jurisdiction; (d) prescribing wording required to be included in or appended to a directive. S.M. 2020, c. 25, s. 2 . 28 and 29 NOTE: These sections contained consequential amendments to other Acts, which are now included in those Acts. 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. NOTE: S.M. 1992, c. 33 was proclaimed in force July 26, 1993.