All About Estates

End of Life Decisions: A Legal Perspective

End of life decisions are some of the most fraught decisions individuals will ever face. Patients and doctors likely approach end of life decisions differently and from differing perspectives.  The Law Commission of Ontario (“LCO”), an independent organization that recommends law reform measures for the province, has produced two reports on this very important issue.

In Health Care Consent, Advance Care Planning, and Goals of Care Practice Tools: The Challenge to Get it Right, the LCO considered a variety of issues.

The report uses a number of terms: “advance care planning” involves patients, when capable, communicating what is important to them regarding their care (i.e. their values and wishes). “goals of care” involve a discussion between doctors and patients to elicit what patients want to achieve as a result of treatment or care.  Some of the report’s key recommendations can be summarized as follows:

  • Language such as “advance directives” or “living wills”, which are often imported from other jurisdictions, should be eliminated. For example, the term “living will” is essentially an American concept that is not found in any Ontario legislation.  For the sake of consistency and clarity, the terminology and nomenclature of the Health Care Consent Act, 1996  should be used exclusively in all medical practice tools (i.e. policies, toolkits and forms).
  • All stakeholders (including patients and substitute decision makers, not just health care practitioners) should receive education on health care consent, goals of care and advance care planning so that informed consent can be effectively obtained.
  • As a condition of funding, healthcare consent and advance care planning initiatives should be legally accurate.

The above report is complemented by Understanding The Relationship Between Suffering and Capacity at the End-Of-Life: A Pilot Study, where the LCO interviewed 14 health care providers regarding end of life issues. The LCO believed that reform to the current system of capacity assessments was required, as the current system did not adequately capture the complexity of end-of-life decision making or properly account for patient suffering. Further research and analysis would be required to determine how this should be addressed, as the authors of the report could not reach a consensus.  As a result, the LCO recommended that a task force be created to further explore this issue and, if warranted, develop guidelines or a tool to assist healthcare practitioners and institutions in supporting patients suffering at the end of their lives. The LCO also recommend exploring the possibility of specialized training for health care practitioners and institutions regarding capacity assessments in the context of end-of-life decisions.

About Jacob Kaufman
Jacob Kaufman is a lawyer with de VRIES LITIGATION LLP. Jacob assists clients with will challenges, dependant support claims, guardianship applications, power of attorney disputes and other estate and trust litigation matters. He has appeared before various levels of court, including the Superior Court of Justice and the Court of Appeal for Ontario. Jacob obtained his law degree from the University of Western Ontario (with distinction) after completing an Honours Bachelor of Arts degree from Queen’s University in history (with distinction). He has written articles for the International Law Office, Legal Alert and the OBA’s Deadbeat. Email: