At some point in our lives, most of us will unfortunately become incapable due to illness, disability, or accident. As adults can only receive health care with their consent, how is this situation handled from a legal standpoint? In a recent blog, we discussed the meaning behind Power of Attorney. Unfortunately, this legal mechanism doesn’t allow another individual to make health or personal care decisions for you in British Columbia.

In British Columbia, consent for healthcare falls under the Health Care (Consent) and Care Facility (Admission) Act. This act provides a legal framework for establishing the following aspects of patient treatment:

•   Ensuring the rights of the patient are preserved;
•   The required elements for informed consent;
•   When consent for healthcare is required; and
•   The process for healthcare consent when a patient is determined incapable of giving or refusing consent.

So, what happens during the common scenario where an adult cannot provide consent for treatment? Here are some of the ways this can play out under BC law.

Providing Treatment to Unconscious Individuals

While a person has capacity, they may sign a Representation Agreement, which appoints an individual to act as representative in the event they become incapacitated in the future. The courts may also appoint a family member, close friend or the Public Guardian and Trustee to act as personal guardian for an individual after they have lost capacity. The representative or personal guardian will be consulted first by medical professionals on how to proceed with treatment in the case of an incapacitated patient.

If the adult in question is incapable of consenting, and a guardian or representative hasn’t been appointed, what happens next?

If the care required is urgent, medical professionals may commence under the following circumstances:

•   The care is necessary in order to preserve the adult’s life, to prevent serious physical or mental harm, or to alleviate severe pain
•   The adult is apparently impaired by drugs or alcohol, is unconscious or semi-conscious for any reason or, in the health care provider’s opinion, otherwise incapable of giving or refusing consent, and;
•   Where practicable, a medical professional is sought for a second opinion about the need for health care and the incapability of the patient.

If a personal guardian or representative becomes available, that person may refuse consent for continued care.

Temporary Substitute Decision Makers

The law also allows for the appointment of a Temporary Substitute Decision Maker to provide consent for major or minor health care procedures. The selected individual is the first person to qualify from a prescribed list of individuals and legal bodies defined by BC Law. A health care provider must choose the first, in listed order, of the following who is available and qualifies as a Temporary Substitute Decision Maker:

(A) The adult’s spouse

(B) The adult’s child

(C) The adult’s parent

(D)   The adult’s brother or sister

(D.1) the adult's grandparent;

(D.2) the adult's grandchild;

(E) Everyone else related by birth or adoption to the adult

(F) A close friend of the adult

(G)   A person immediately related to the adult by marriage

(H)   If no one is available or qualifies, the health care provider may choose an individual employed by the Public Guardian and Trustee

Qualifying as a Temporary Substitute Decision Maker

You may have noticed we referenced “qualifying” as a decision maker. Under BC Law, individuals must comply with a number of criteria before they can be considered for the process. The criteria is as follows:

•   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
•   Is capable of giving, refusing or revoking substitute consent, and
•   Is willing to comply with the duties under the Health Care (Consent) and Care Facility (Admission) Act, which includes consulting to the greatest extent possible with the adult and considering the adult’s wishes, beliefs and values

Defining Major and Minor Health Care

As we’ve been using the terms “major” and “minor” health care a lot in this blog, it’s worthwhile to explain exactly what’s meant by both.

Major Health Care

•   Major surgery
•   Any treatment involving a general anesthetic
•   Major diagnostic or investigative procedures
•   Any health care designated by regulation as major health care

Minor Health Care

• Routine tests to determine if health care is necessary
• Routine dental treatment that prevents or treats a condition or injury causes by disease or trauma
• Cavity fillings and extractions done with or without local anesthetic
• Oral hygiene inspections

Developing an Advance Care Plan

It’s crucial to create an advance care plan for these eventualities. Without a plan in place, your healthcare provider may need to decide on a temporary substitute decision maker and seek their consultation before providing care. This can result in critical delays and may even lead to disputes between family members.

It’s also important to note a Temporary Substitute Decision Maker only has temporary authority to make specific healthcare decisions. For each subsequent decision, the health care provider will need to return to the priority list of persons to consult with. If there’s a disagreement between two equally ranked family members, this decision could end up being litigated by the courts.

Avoiding this scenario is simple. Plan in advance by appointing a person (or persons) to act as representative(s) for you if you lose the ability to consent by executing a Representation Agreement.

Let us Help

Westside Family Law can assist with any legal questions you may have surrounding Representation Agreements or estate law. Contact us and we’ll be happy to assist.