Health Care Consent

A person may become incapable at a point in his or her life due to illness, disability or accident. If an adult is, or becomes incapable, another person (or persons) can become the substitute decision-maker(s), who acts on the wishes and values of the incapable adult.

Legislation

In BC, consent for health care is governed by the Health Care (Consent) and Care Facility (Admission) Act.  This Act outlines:

  • patient’s rights;
  • the required elements for informed consent;
  • when consent for health care is required; and
  • the process for health care consent if a patient is determined incapable of giving or refusing consent.

Health Care Consent – The General Rules

  1. Adults can only be given health care with their consent
  2. Adults are presumed to be capable of giving consent.
  3. Adult must be approached first for a decision about health care

With appropriate communication, and necessary information and support, most adults can make their own decisions and give informed consent

When Consent is Not Required

Consent is not required:

  • When urgent or emergency health care is required, adult is incapable, and there is no committee, representative, Advance Directive or TSDM available;
  • Involuntary psychiatric treatment is needed under the Mental Health Act; and,
  • For preliminary examinations such as triage or assessment

When Consent is Not Possible

Adult is:

  • unconscious
  • mentally incapable
  • otherwise unable to given consent

Deciding if Incapable of Consent

In deciding whether an adult is incapable of making a health care decision, and so a substitute decision maker is required, the health care provider must determine:

•Whether the adult demonstrates an understanding of the information provided about the health care

-and-

•That this information applies to the adult’s situation

Appointment of Substitute Decision Maker

A substitute decision-maker can be appointed in any of the following ways:

  • A capable adult can name the substitute decision-maker(s) in an Advance Planning Document (e.g. in a Enduring Power of Attorney, a Representative Agreement); or
  • An incapable adult may have a guardian (called a Committee (“kaw-mit-tay”) of the Estate or Committee of Person, or both) appointed by the courts (or by statute) to make decisions.
  • The PGT may be appointed to make decisions by court order.

Note – a temporary substitute decision maker make decisions as well, see below.

Restrictions on Substitute Decision Making

Substituted decision making does not apply to certain decisions such as those related to:

  • Psychiatric treatment of involuntary patients under the Mental Health Act
  • Non-therapeutic sterilization
  • Certain communicable diseases as set out in the law

Limitations on the Substitute Decision Maker

Also a committee, representative or TSDM may be limited in their decisions depending on the scope of their authority under:

  • the applicable legislation;
  • the court order; or,
  • the authorizing document.

Hierarchy of Health Care Consent

The law recognizes the roles of family and friends who are able and willing to make health care decisions for you.  The law sets out a hierarchy of alternate decision makers in this order:

Health Care Consent Hierarchy

Committee of the Person

  • A committee of the person makes personal and medical decisions for someone who is not mentally capable, including decisions about where the person will live.
  • Usually a family member or close friend will do this.
  • The Public Guardian and Trustee can also be committee of the person.
  • Only the court can appoint a committee of the person.

Committee and Consent

  • Committee of the Person can give, refuse, or withdraw consent to any health care to which the adult could give or refuse consent while capable, except nontherapeutic sterilization.
  • may withdraw consent given by an adult when capable or by way of an Advance Directive, or by a representative or temporary substitute decision-maker.
  • An Advance Directive document is not binding on the decisions of a personal guardian.

Representation Agreements

  • Representation agreements give effect to an adult’s specific instructions and wishes indirectly, by requiring the representative to consult with the adult and comply with the adult’s current wishes “if it is reasonable to do so…”
  • This is unless the representation agreement provides that the representative need only comply with the adult’s wishes expressed while capable.
  • If it is not reasonable to comply with current wishes, they are not known or the duty to comply with them is excluded in the agreement, then the representative must comply with the adult’s instructions or wishes expressed by the adult while capable

Advance Directives

  • An Advance Directive is a written document stating how you want medical decisions to be made if you lose the ability to make them for yourself, including and especially end-of-life decisions.
  • They can be general in their direction, or they can give specific directions about various medical procedures
  • They can specify whether life-prolonging treatment should be given in certain circumstances (for instance, if there is a diagnosis of persistent vegetative state, or when it is clear the end is near).

Temporary Substitute Decision Maker (TSDM)

For health care there is also a temporary substitute decision maker framework.   If a health care provider is  unable to get consent of a patient for a health care decision, there is no RA or Advance Directive, and no appointed  Committee of Person, then the health care provider will need to get consent from a Temporary Substitute Decision-maker (TSDM)

  • TSDM generally valid for 21 days – but for each new decision – provider finds TSDM
  • Hierarchy of TSDMs
TSDM Hierarchy

The HCCFA provides a hierarchical, default list of TSDMs, as follows (s.16):

  • spouse;
  • child;
  • parent;
  • brother or sister;
  • grandparent;
  • grandchild;
  • anyone else related by birth or adoption to the adult;
  • a close friend of the adult;
  • a person immediately related to the adult by marriage.
TSDM Requirements

To qualify to give, refuse or revoke substitute consent to health care for an adult, a person must:

  • be at least 19 years of age,
  • have been in contact with the adult during the preceding 12 months,
  • have no dispute with the adult,
  • be capable of giving, refusing or revoking substitute consent, and
  • be willing to comply with the duties of a TSDM