Copyright and Disclaimer Print


AR 99/2008 PERSONAL DIRECTIVES REGULATION

(Consolidated up to 249/2017)

ALBERTA REGULATION 99/2008

Personal Directives Act

PERSONAL DIRECTIVES REGULATION

Table of Contents

                1      Definitions

                2      Required information

                3      Personal Directives Registry

                4      Registering information in personal directives registry


                5      Access, use and disclosure of registry information

                6      Agreements

                7      Assessments under s9(2)(a) of Act

                8      Assessments under s9(2)(b) of Act

                9      Assessments by agent under s10.1 of Act

              10      Assessments by service provider under s10.1 of Act

              11      Assessments under s10.1(5) of Act

              12      Investigation by Public Guardian

              14      Coming into force

Definitions

1(1)  In the Act and this Regulation,

                               (a)    “health care practitioner” means a person, regulated by a professional Act, who provides health care to any person;

                              (b)    “Minister” means the Minister determined under section 16 of the Government Organization Act as the Minister responsible for the Act;

                               (c)    “physician” means a person who is a regulated member of the College of Physicians and Surgeons of Alberta under the Health Professions Act;

                              (d)    “professional Act” means an Act that regulates a health care profession;

                               (e)    “psychologist” means a person who is a regulated member of the College of Alberta Psychologists under the Health Professions Act;

                               (f)    “record” means a record of information in any form;

                               (g)    “residential facility” means

                                        (i)    a nursing home as defined in the Nursing Homes Act,

                                      (ii)    a facility licensed under the Supportive Living Accommodation Licensing Act,

                                     (iii)    an approved hospital or auxiliary hospital as defined in the Hospitals Act, or

                                     (iv)    lodge accommodation as defined in the Alberta Housing Act.

(2)  In this Regulation,

                               (a)    “approved service provider” means a person or organization that has entered into an agreement described in section 6(1) with the Minister;

                              (b)    “authorized user” means a person designated by an approved service provider under section 6(3) as an authorized user;

                               (c)    “personal directives registry” means the registry established under section 3;

                              (d)    “registry information” means information referred to in section 4(1) that is registered in the personal directives registry;

                               (e)    “third party” means, in respect of a maker, any of the following:

                                        (i)    the maker’s agent, spouse, adult interdependent partner, child, parent, brother, sister, grandparent, grandchild, uncle, aunt, nephew, niece, son‑in‑law or daughter‑in‑law;

                                      (ii)    the director of a residential facility in which the maker resides, or a person designated by the director;

                                     (iii)    the maker’s lawyer;

                                     (iv)    the maker’s physician.

AR 99/2008 s1;167/2013

Required information

2(1)  The information that a maker must provide to the Public Guardian pursuant to section 7.1 of the Act is as follows:

                               (a)    the maker’s full legal name, telephone number, mailing address, and e‑mail address, if any;

                              (b)    the name and contact information of a person that the maker would like the Public Guardian to contact in an emergency situation;

                               (c)    a copy of the maker’s personal directive.

(2)  If the Public Guardian consents to being designated as a maker’s agent, the maker must provide the information referred to in subsection (1) any time that there is a change to the information or at the request of the Public Guardian.

Personal Directives Registry

3   The Minister shall establish and maintain a registry containing information registered in accordance with section 7.2 of the Act and this Regulation.

Registering information in personal directives registry

4(1)  A maker, or a third party on behalf of a maker, may provide the following information to the Minister for registration in the personal directives registry:

                               (a)    the date the maker signed the personal directive;

                              (b)    the maker’s name, telephone number, mailing address, e‑mail address, date of birth and personal health number;

                               (c)    the name, telephone number, mailing address and e‑mail address of any person designated in the personal directive as an agent of the maker.

(2)  The Minister may register information referred to in subsection (1)(a) or (b) with respect to a maker if the maker confirms, in a manner satisfactory to the Minister, that

                               (a)    the information is correct, and

                              (b)    the maker consents to the information being registered in the personal directives registry and used and disclosed in accordance with this Regulation.

(3)  The Minister may register information referred to in subsection (1)(c) with respect to a person designated in a personal directive as an agent of a maker if

                               (a)    the maker confirms, in a manner satisfactory to the Minister, that the person is designated as an agent of the maker, and

                              (b)    the agent confirms, in a manner satisfactory to the Minister, that

                                        (i)    the information is correct, and

                                      (ii)    the agent consents to the information being registered in the personal directives registry and used and disclosed in accordance with this Regulation.

Access, use and disclosure of registry information

5(1)  Registry information may be accessed, used and disclosed as follows:

                               (a)    a maker may access registry information that relates to the maker and to agents of the maker;

                              (b)    an agent of a maker may access registry information that relates to the agent;

                               (c)    the Minister may

                                        (i)    enter, update, correct and delete registry information,

                                      (ii)    disclose registry information to persons who are authorized to access it under this Regulation,

                                     (iii)    access, use and disclose registry information in the personal directives registry for administrative purposes, including statistical analysis and reporting, research, program planning and policy development, and

                                     (iv)    disclose registry information to the Public Guardian for the purposes of an investigation under section 24.3 of the Act;

                              (d)    an approved service provider and its authorized users may access and use registry information only for the purpose of

                                        (i)    determining whether persons under the care of the approved service provider have made personal directives, and

                                      (ii)    contacting agents of makers under the care of the approved service provider.

(2)  If a person who is interested in the welfare of a maker requests registry information respecting the maker or an agent of the maker, the Minister may

                               (a)    collect the person’s contact information and, with the person’s consent, disclose it to the maker or agent, as the case may be, to enable the maker or agent to contact the person, or

                              (b)    disclose the registry information to the person if, in the opinion of the Minister, the disclosure is in the best interest of the maker.

Agreements

6(1)  The Minister may enter into an agreement with any of the following persons or organization that permits that person or organization to access registry information as an approved service provider in accordance with this Regulation:

                               (a)    a service provider who provides health care services;

                              (b)    a public body under the Freedom of Information and Protection of Privacy Act;

                               (c)    a custodian under the Health Information Act;

                              (d)    an organization under the Personal Information Protection Act.

(2)  An agreement under subsection (1) must be in the form specified by the Minister.

(3)  An approved service provider may, in accordance with the terms of the agreement under subsection (1), designate a physician or an employee, contractor or agent of the approved service provider as an authorized user of the approved service provider.

(4)  An approved service provider and its authorized users must comply with

                               (a)    the terms and conditions set out in the agreement under subsection (1), and

                              (b)    the policies and procedures of the approved service provider developed in accordance with the agreement.

Assessments under s9(2)(a) of Act

7(1)  When a person designated in a personal directive to determine the maker’s capacity, or a physician or psychologist who has been consulted by the designated person, is assessing a maker’s capacity for the purpose of making a written declaration under section 9(2)(a) of the Act, the designated person, physician or psychologist must conduct the assessment in accordance with this section.

(2)  Before conducting the assessment, the designated person must

                               (a)    identify the reasons for conducting the assessment, including whether the maker’s capacity to make personal decisions has been called into question,

                              (b)    meet with the maker and, after considering the reasons for conducting the assessment identified under clause (a) and the maker’s usual capacity to make personal decisions, identify the personal matters for which an assessment of the maker’s capacity to make personal decisions is warranted, and

                               (c)    meet with the maker to explain the purpose and nature of the assessment, the maker’s right to refuse to be assessed by the designated person and the significance and effect of a finding that the maker lacks capacity to make personal decisions.

(3)  Before the consulting physician or psychologist provides an opinion to the designated person regarding the physician’s or psychologist’s assessment of the maker’s capacity, the physician or psychologist must

                               (a)    identify the reasons for conducting the assessment, including whether the maker’s capacity to make personal decisions has been called into question,

                              (b)    identify and rule out any temporary medical conditions that may affect the maker’s capacity to make personal decisions,

                               (c)    meet with the maker and, after considering the matters identified under clauses (a) and (b), identify the personal matters for which an assessment of the maker’s capacity to make personal decisions is warranted, and

                              (d)    meet with the maker to explain the purpose and nature of the assessment, the maker’s right to refuse to be assessed by the physician or psychologist and the significance and effect of a finding that the maker lacks capacity to make personal decisions.

(4)  The designated person and the consulting physician or psychologist may only conduct an assessment under this section with respect to the personal matters that have been identified by that designated person, physician or psychologist as warranting an assessment.

(5)  The designated person and the consulting physician or psychologist may only conduct an assessment under this section if the maker has not refused to be assessed and,

                               (a)    in the opinion of the designated person, physician or psychologist, the maker

                                        (i)    appears to be capable of consenting to the assessment and has consented, and

                                      (ii)    understands the purpose of the assessment and that the maker has a right to refuse to be assessed,

                                  or

                              (b)    in the opinion of the designated person, physician or psychologist,

                                        (i)    the maker is not, or might not be, capable of consenting to the assessment, and

                                      (ii)    it is in the best interest of the maker to conduct the assessment.

(6)  When conducting an assessment of the maker’s capacity to make personal decisions with respect to each personal matter identified under subsection (2)(b), the designated person must meet with the maker and form an opinion as to whether the maker is able to

                               (a)    understand the information that is needed to make a decision and the options presented,

                              (b)    retain the information that is relevant to making a decision,

                               (c)    identify and appreciate the consequences of making or not making a decision, and

                              (d)    communicate the maker’s decision.

(7)  When consulting with the designated person about an assessment of the maker’s capacity to make personal decisions with respect to each personal matter identified under subsection (3)(c), the physician or psychologist must meet with the maker and form an opinion as to whether the maker is able to

                               (a)    understand the information that is needed to make a decision and the options presented,

                              (b)    retain the information that is relevant to making a decision,

                               (c)    identify and appreciate the consequences of making or not making a decision, and

                              (d)    communicate the maker’s decision.

(8)  If, after conducting an assessment under this section and consulting with a physician or psychologist, the designated person determines that the maker lacks capacity to make personal decisions with respect to a personal matter, the designated person must complete a written declaration with respect to that personal matter in the form prescribed in Schedule 2 to the Personal Directives (Ministerial) Regulation (AR 26/98).

(9)  If, after consulting with the designated person, considering the designated person’s assessment and conducting an assessment under this section, the physician or psychologist determines that the maker lacks capacity to make personal decisions with respect to a personal matter, the physician or psychologist must provide the physician’s or psychologist’s opinion in the form prescribed in Schedule 2 to the Personal Directives (Ministerial) Regulation (AR 26/98).

(10)  The designated person or the consulting physician or psychologist may recommend a date for a review of the declaration if, in the opinion of the person, physician or psychologist, a periodic review of the maker’s capacity to make personal decisions is appropriate.

Assessments under s9(2)(b) of Act

8(1)  When a service provider is assessing a maker’s capacity for the purpose of making a written declaration under section 9(2)(b) of the Act, the service provider must conduct the assessment in accordance with this section.

(2)  Before conducting the assessment, the service provider must

                               (a)    identify the reasons for conducting the assessment, including whether the maker’s capacity to make personal decisions has been called into question,

                              (b)    identify and rule out any temporary medical conditions that may affect the maker’s capacity to make personal decisions,

                               (c)    meet with the maker and, after considering the matters identified under clauses (a) and (b), identify the personal matters for which an assessment of the maker’s capacity to make personal decisions is warranted, and

                              (d)    meet with the maker to explain the purpose and nature of the assessment, the maker’s right to refuse to be assessed by the service provider and the significance and effect of a finding that the maker lacks capacity to make personal decisions.

(3)  A service provider may only conduct an assessment under this section of the maker’s capacity to make personal decisions with respect to the personal matters that have been identified by the service providers as warranting assessment.

(4)  A service provider may only conduct an assessment under this section if the maker has not refused to be assessed and,

                               (a)    in the opinion of the service provider, the maker

                                        (i)    appears to be capable of consenting to the assessment and has consented, and

                                      (ii)    understands the purpose of the assessment and that the maker has a right to refuse to be assessed,

                                  or

                              (b)    in the opinion of the service provider,

                                        (i)    the maker is not, or might not be, capable of consenting to the assessment, and

                                      (ii)    it is in the best interest of the maker to conduct the assessment.

(5)  When conducting an assessment of the maker’s capacity to make personal decisions with respect to each personal matter identified under subsection (2)(c), the service provider must meet with the maker and form an opinion as to whether the maker is able to

                               (a)    understand the information that is needed to make a decision and the options presented,

                              (b)    retain the information that is relevant to making a decision,

                               (c)    identify and appreciate the consequences of making or not making a decision, and

                              (d)    communicate the maker’s decision.

(6)  If, after conducting an assessment under this section, a service provider determines that the maker lacks capacity to make personal decisions with respect to a personal matter, the service provider

                               (a)    must complete a declaration with respect to that personal matter in the form prescribed in Schedule 3 to the Personal Directives (Ministerial) Regulation (AR 26/98), and

                              (b)    may recommend a date for a review of the declaration if, in the opinion of the service provider, a periodic review of the maker’s capacity to make personal decisions is appropriate.

Assessments by agent under s10.1 of Act

9(1)  When an agent is assessing a maker’s capacity pursuant to section 10.1(1) of the Act, or consulting with a service provider who is assessing the maker’s capacity pursuant to section 10.1(2) of the Act, the agent

                               (a)    must speak with the maker and with a service provider who has recently provided a health care service to the maker about whether the maker has regained capacity to make personal decisions,

                              (b)    may speak with any other agents named in the personal directive or with any other person who may have relevant information about whether the maker has regained capacity to make personal decisions,

                               (c)    may review any health or other records concerning the maker that are relevant to the assessment of the maker’s capacity and may discuss the records with the maker’s physician or other health care practitioners, and

                              (d)    may consider recent statements or recommendations made by any health care practitioners who have been consulted about the maker’s capacity.

(2)  When an agent is assessing whether the maker has regained capacity, the agent must

                               (a)    observe, or be satisfied that a service provider who provides health care services to a maker has observed, a significant change in the maker’s capacity,

                              (b)    consider any statements or other evidence that may be provided by a service provider, agent or other person that corroborate that there has been a change in the maker’s capacity to make personal decisions, and

                               (c)    consider the period of time over which the change has been observed by service providers, agents or other persons.

Assessments by service provider under s10.1 of Act

10(1)  When a service provider is assessing a maker’s capacity pursuant to section 10.1(2) of the Act, or consulting with an agent who is assessing the maker’s capacity pursuant to section 10.1(1) of the Act, the service provider

                               (a)    must speak with the maker and with a service provider who has recently provided a health care service to the maker about whether the maker has regained capacity to make personal decisions,

                              (b)    may speak with any agents named in the personal directive or with any other person who may have relevant information about whether the maker has regained capacity to make personal decisions,

                               (c)    may review any health or other records concerning the maker that are relevant to the assessment of the maker’s capacity and may discuss the records with the maker’s physician or other health care practitioners, and

                              (d)    may consider recent statements or recommendations made by any health care practitioners who have been consulted about the maker’s capacity.

(2)  When a service provider is assessing whether the maker has regained capacity, the service provider must

                               (a)    be satisfied that either an agent of the maker or a service provider who provides health care services to the maker has directly observed a significant change in the maker’s capacity,

                              (b)    consider any statements or other evidence that may be provided by other service providers, agents or other persons that corroborate that there has been a change in the maker’s capacity to make personal decisions, and

                               (c)    consider the period of time over which the change has been observed by other service providers, agents or other persons.

Assessments under s10.1(5) of Act

11(1)  When a service provider is assessing a maker’s capacity for the purpose of section 10.1(5) of the Act, the service provider must conduct the assessment in accordance with this section.

(2)  Before conducting the assessment, the service provider must

                               (a)    determine that section 10.1(4) of the Act applies,

                              (b)    determine that it is in the best interest of the maker to conduct the assessment,

                               (c)    independently identify and rule out any temporary medical conditions that may affect the maker’s capacity to make personal decisions,

                              (d)    meet with the maker and identify the personal matters for which an assessment of the maker’s capacity to make personal decisions is warranted, and

                               (e)    meet with the maker to explain to the maker the purpose and nature of the assessment.

(3)  When conducting an assessment of the maker’s capacity to make personal decisions, the service provider must meet with the maker and form an opinion as to whether the maker is able to

                               (a)    understand the information that is needed to make a decision and the options presented,

                              (b)    retain the information that is relevant to making a decision,

                               (c)    identify and appreciate the consequences of making or not making a decision, and

                              (d)    communicate the maker’s decision.

(4)  If, after conducting an assessment under this section, the service provider determines that the maker has regained the capacity to make personal decisions with respect to any of the personal matters in respect of which the personal directive is in effect, the service provider must complete a Determination of Regained Capacity in the form prescribed in Schedule 6 to the Personal Directives (Ministerial) Regulation (AR 26/98).

Investigation by Public Guardian

12   If, after conducting an investigation under Part 4.1 of the Act, the Public Guardian is not satisfied that there are reasonable grounds to believe that the grounds for complaint set out in section 24.2(1) of the Act apply to the agent who is the subject of the complaint, the Public Guardian may notify the complainant and the persons notified under section 24.3(2) of the Act that no further action will be taken by the Public Guardian.

13   Repealed AR 249/2017 s2.

Coming into force

14   This Regulation comes into force on the coming into force of section 1 of the Personal Directives Amendment Act, 2007, SA 2007 c37.