Mental Health Act: Consent to Medical Treatment (14:VI)

The following subsections apply only to patients voluntarily admitted to a mental health facility or voluntarily receiving treatment from a health care/psychiatric service provider. Patients admitted involuntarily lose certain rights (see Section VII).

A. Adult’s Right to Consent

Every adult is presumed to be capable of giving, refusing or revoking consent to health care and to their presence at a care facility (HCCFA, s 3).

Every adult who is capable has the right to give, refuse and revoke consent on any grounds (including moral and religious), even if refusal will result in death (HCCFA, s 4).

Every adult who is capable has the right to be involved to the greatest degree possible in all case planning and decision making (HCCFA, s 4).

B. Care Provider’s Duty to Obtain Consent

A health care provider must not provide health care to an adult without consent, except in an emergency situation or when substitute consent has been given and the care provider has made every reasonable effort to obtain a decision from the adult (HCCFA, ss 5, 12).

For consent to be valid, it must be related to the proposed health care, voluntary, not obtained by fraud or misrepresentation, informed (see HCCFA, s 6(e)), and given after an opportunity to make inquiries about the procedure (HCCFA, s 6).

C. Emergency Situations

A care provider may provide care to an adult without the adult’s consent in an emergency situation where the adult cannot give or refuse consent and no personal guardian or representative is present (HCCFA, s 12). If a personal guardian or representative later becomes available and refuses consent, the care must stop (HCCFA, s 12(3)).

However, the above does not apply if the care provider has reasonable grounds to believe that the adult, while capable and after attaining 19 years of age, has expressed an instruction or wish applicable to the circumstances to refuse consent to the health care (HCCFA, s 12.1).

D. Personal Guardians and Temporary Substitute Decision Makers

A care provider may provide care to an adult without the adult’s consent if the adult is incapable of giving or refusing consent and a personal guardian or representative gives consent (HCCFA, s 11).

If a personal guardian or representative refuses consent, the health care may be provided despite the refusal in an emergency if the person refusing consent did not comply with their duties under the HCCFA or any other act (HCCFA, s 12.2).

A temporary substitute decision maker (TSDM) can be chosen by the care provider in accordance with HCCFA, s 16. See HCCFA, ss 16-19 for the authority and duties of a TSDM. There is a statutory list of those assigned to be a TSDM, beginning with a spouse, and moving down. More details can be found in Chapter 15: Adult Guardianship.

In situations where a mentally ill person is judged to be incapable of making a health care decision, the provisions for a substitute decision maker under the HCCFA continue to apply. However, if the person is declared an involuntary patient under s 22 of the MHA, then psychiatric treatment can be provided under the deemed consent provisions of s 32 of the MHA.

E. Consent to Treatment Forms

When admitted to a mental health facility, voluntary patients (or their committees, parents, guardians or representatives) may be asked to sign a “consent to treatment” form, which purports to “authorize the following treatment(s)”. There is no basis in law for requiring this form be signed as a prerequisite of a voluntary admission, but the law does not prohibit such a requirement.

Under the HCCFA, it is unlikely that mere signing of this form constitutes informed consent to treatment. Consent will be considered to be “informed” only where the patient has been informed of the nature of the risks and benefits of the specific treatment and of alternative treatments, and has agreed to be subject to the treatment. Signing the form may not be sufficient to indicate informed consent on its own.

1. Refusal to Sign Consent Treatment Form: Possible Consequences

A person who refuses to sign the consent form may be deemed a patient who “could not be cared for or treated appropriately in the facility” under s 18(b) of the MHA. This person runs the risk of being refused admission to the facility or being discharged if already admitted.

Under the Patients Property Act (PPA) hospitals could circumvent the issue of consent by seeking a court order, supported by two medical opinions, to have the patient declared incapable of managing his or her person. Minor changes were made to the PPA in September 2011. Under the PPA, a legal guardian or public trustee is appointed as committee to give consent for the patient. It is not sufficient for a family member to give consent for a voluntary informal patient without first obtaining legal guardianship or committeeship, or becoming a substitute decision maker under the HCCFA.

A recent decision in Nova Scotia regarding guardianship found that some of the central provisions of the Incompetent Persons Act, R.S.N.S., 1989, c. 218 are unconstitutional (Webb v. Webb, 2016 NSSC 180). This legislation allows for the appointment of a guardian where a person is found incompetent (similar to the PPA), but it was found that the legislation was overbroad, not allowing a court to tailor a guardianship order so that a person subject to that order can retain the ability to makes decisions in respect of those areas in which they are capable. This may have an impact on the PPA in BC in the future

Sections 50 to 59 of the Adult Guardianship Act (APA) allow for a person from a designated agency to make unilateral decisions which affect the adult’s support and assistance without their consent, including treatment and removal from a residence. For instance, section 56 allows a person from a designated agency to apply for a court order which can determine an adult’s mode of treatment. Furthermore, section 59 gives a person from a designated agency broad powers in regard to an adult, such as enter their premises without a warrant, remove them from their premises and convey them to “a safe place”, and provide emergency medical care, so long as it is within the context of an emergency situation or the adult is incapable of providing consent.

The facility could also proceed under the HCCFA by declaring the patient incapable of consenting, using a temporary substitute decision maker (TSDM) and/or claiming that a state of emergency exists such that the patient must be treated without his or her consent.