Health Care Consent in Residential Care

The legal requirements for health care consent are set out in Health Care (Consent) and Care Facility (Admission) Act (HCCCFA). The Act outlines how health care consent is obtained and the few instances in which consent is not required.

The six general rules regarding health care consent are:

1. Adults can only be given health care with their consent (s. 5, HCCCFA)
2. Adults are presumed to be capable of giving consent. (s. 3, HCCCFA)
3. Adults must be approached first for a decision about health care.
4. Adults can withdraw their consent, as long as they are mentally capable.
5. Consent is specific to the health care the person agreed to.( s. 9 (2) HCCCFA)
6. Health consent must be freely given and informed.

Most adults, including many of those living in residential care facilities, can make their own treatment decisions. A resident can give informed consent when there is appropriate communication between the health care provider and the resident, along with necessary information and support. [See Tips at end] To provide health care without consent, irrespective of whether it is for minor or major treatment is an assault.

Noteworthy: Demonstrating Consent: A resident’s consent can be shown in a variety of ways. Consent can be inferred by the resident’s actions, given verbally or be evidenced in a written form.

The Conditions of Health Care Consent

The conditions for consent in residential care include:

• The individual resident has been adequately informed.
• The individual resident is capable of giving or refusing consent.
• There has been no coercion, fraud or misrepresentation.
• There actually is a choice.

The same conditions apply when a substitute decisionmaker is making the decision for the resident. Consent to health care must be voluntary. No one can pressure or force the resident or a substitute decisionmaker to decide in a particular way, or deliberately give wrong information to influence the decision. Health care providers must provide residents and substitute decision-makers with the information that a reasonable person would require in order to make a decision about proposed health care. This includes information about:

• The condition for which the health care is proposed.
• The nature of the proposed health care.
• The risks and benefits of the proposed health care.
• Alternatives to the proposed health care.

The amount of details needed depends on the type of care that would be provided and type of decision to be made, with more intrusive acts and greater risks to the individual more likely to require more detail. The information must be sufficient, specific and based on sound information. The information also needs to be provided in a timely and appropriate manner, taking into account the individual's abilities, age, culture, language and preferences. Residents and substitute decision-makers need be provided adequate time, plus an opportunity to ask questions and receive answers.

Health care providers must not use coercion, fraud or misrepresentation in the consent process. Health care providers must be sensitive to the difference in power between health professionals and clients and do not misuse that power to influence clients' decision making.

Health care providers must respect the right of clients and substitute decision-makers to seek further information or another opinion and to involve others in the decision-making and consent process.

Noteworthy: Consent is Specific to Issue and Time: Health care consent law is clear - the consent applies only to the specific health care to which an adult has consented. For that reason, efforts to gain written consent from residents or their substitute for certain types of events in the future, such as health care treatment (blanket consent) are not legally valid.

Who Must Seek Consent for Health Care?

The Health Care (Consent) and Care Facility (Admission) Act specifically applies to health care providers and social workers. Health care providers covered by the Act include physicians, dentists, registered and licensed practical nurses, physiotherapists, occupational therapists, optometrists, chiropractors and sixteen other groups of regulated health professionals. For a list see the Health Care Consent Regulation and BC Health Regulators. The residential care aides (staff who provide most of the day to day care) are not currently covered by these acts. The expectation apparently is that their supervisors will seek consent for health care.

What is Meant by “Health Care”?

The Health Care (Consent) and Care Facility (Admission) Act describes “health care “ in the context of “treatment” and clearly sets out that all health care treatment requires consent. Health care is defined broadly as “anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other purpose related to health”. The types of treatments covered can include:

• an individual treatment (e.g. a broken foot, a tooth extraction, surgery)
• a series or sequence of similar treatments or care over a period of time for a particular health problem (medication regime, rehabilitation therapy, wound care, ongoing treatment for pain or migraines), as well as
• a “plan for minor health care”

The last type refers to a plan developed by health care providers that “deals with one or more of the health problems that an adult has and may, in addition, deal with one or more of the health problems that an adult is likely to have in the future given the adult's current health condition. “ For example, a care plan might involve helping to manage the health of a person who has diabetes. A health care plan is also a component of care planning required for each individual resident upon admission (See below).

A plan for minor health care is not a blanket approval process, where consent is only required once. Instead, by law, the plans must be revisited (and specifically, the consent “expires no later than 12 months from the date consent for the plan was given”). Withdrawing consent for any aspect of health care treatment is an option at any point, if the capable person so decides.

The Supreme Court of Canada in Cuthbertson v. Rasouli ( an Ontario case) considered what the terms “treatment” and “health related purpose” meant in the context of (withdrawing) life support. In Rasouli the Court noted these two terms are not confined to procedures that the patient's health care providers consider as a medical benefit to the person. Rather, the focus is on why it is being done -- "treatment" is broadly defined as "anything that is done" for one of the enumerated purposes (therapeutic, preventative, palliative, diagnostic and cosmetic) or "other health-related purpose". In Rasouli, the Court also emphasized that treatment includes stopping treatment.

Consent Rights

With respect to health care rights, the Health Care (Consent) and Care Facility (Admission) Act states every adult has the right to:

(a) give consent or to refuse consent on any grounds, including moral or religious grounds, even if the refusal will result in death,

(b) select a particular form of available health care on any grounds, including moral or religious grounds,

(c) revoke consent,

(d) expect that a decision to give, refuse or revoke consent will be respected, and

(e) be involved to the greatest degree possible in all case planning and decision making.

:Noteworthy : Forms versus Consent

Signing a consent form is not the same as giving consent.

The Consent Process

One of the many common misunderstandings in this area of residential care, is that having a signed consent form is the same as “consent”. It is not. Consent is predicated on communication, understanding and choice.

Effective communication is essential to ensuring that resident’s decisions about his or her own health care are understood, expressed and respected by everyone involved. Communication and decision-making about health care is often an ongoing process. While residents may consent to an initial plan for care, there can be a need for health care providers to re-establish consent. This might arise for example if the health care provider is contemplating changes to the plan or believe resident may be reconsidering the decision.

How Does a Person Give Consent?

Decisions about health care must be voluntary. No one can pressure or force the person to decide in a particular way, or deliberately give wrong information to influence decision.

People can give consent in different ways—by speaking, by writing, or through behaviour, such as nodding or making a sign that the person agrees. Although behaviour may count as consent— for example, offering an arm for an injection when requested, opening their mouth, or complying with a course of treatment—cooperating is not always the same thing as giving informed consent.

Exceptions to Requiring Consent

Are there circumstances in which the person’s consent to health care is not required?

Consent is not possible when the adult is unconscious, mentally incapable of making that particular decision, or, otherwise unable to give consent. Consent is not required:

• for preliminary examinations such as triage or assessment,
• when the person needs urgent or emergency health care, (*)
• when the adult is incapable, and there is no committee, representative, advance directive or TSDM available.
• when the person needs involuntary psychiatric treatment under the Mental Health Act.

(*) Health care provider cannot just wait for things to become urgent or an emergency

Health Care at the Margins

It is not always automatically apparent what is or is not “health care”. The law describes two kinds of health care in the context of substitute decisionmakers’ mandates:

Minor health care

which includes matters such as regular checkups, routine tests, basic dental and eye care, immunizations, medications, and other care that is not major health care.

Major health care

which includes matters such as surgery, risky or complex tests, any treatment involving a general anesthetic, radiation, chemotherapy, and kidney dialysis.

The public might assume that almost anything done in a health care setting such as a private hospital, extended care unit of a hospital or residential care facility would be “health care”. Similarly they may assume anything involving technology or medical equipment; prescribed by a physician; done by a nurse, nurse practitioner, or care worker was “health care “ or “treatment “; and anything physically intrusive in a care setting is “treatment”. However a recent British Columbia case (Bentley v. Maplewood Seniors Care Society, a case involving spoon

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by BC Centre for Elder Advocacy and Support, June 2014.

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