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 (21) (s. 5, HCCCFA)
2. Adults are presumed to be capable of giving consent. (22) (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.(23) Consent to health care must be voluntary. No one can pressure or force the resident or a substitute decision-maker 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.(24) 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. (25) 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 (26) and BC Health Regulators.(27) 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),(28) 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 (29)(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. (30)

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?

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(31)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.(32)

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 feeding a woman in care with advance dementia) suggests that health care is more narrow than commonly assumed.(33)

As the traditional nursing tasks have increasingly become delegated or transferred to care workers, the lines between “health care “ tasks involving informed consent and other kinds of care that residents might receive, have become increasingly blurred. The matter of health care is sometimes becoming less about what is being done, than who is doing it.

Areas of Confusion Around Health Care Consent in Residential Care

As noted, the Health Care (Consent) and Care Facility (Admission) Act sets out the requirements for health care providers to follow to ensure that a capable resident (or their substitute decision-maker when the resident is incapable) provides consent before health care is given. However family members of residents with dementia often find a resident has been given an antipsychotic or other medication without the resident’s or substitute decision-makers’ knowledge or informed consent. This is in spite of the fact that the family may be the legally recognized health care decision-maker for the mentally incapable resident. About one half of all residents in British Columbia care facilities are prescribed psychoactive medications.(34) The medications are often used in response to anxiety, wandering, verbal and restless behaviours. Many commonly used psychoactive medications prescribed in care facilities have been shown to have serious side effects on people who are frail and elderly. These effects include sedation, higher risks of falls and hip fractures, Parkinson's disease-type symptoms, cardiovascular events (stroke and heart attack), and a greater risk of death.(35)

In June 2005, Health Canada issued an advisory notice about the use of atypical antipsychotic medication in the treatment of behavioural disorders in elderly patients. Health Canada specifically pointed out these medications are not approved for use in elderly patients with dementia. In some instances, operators (many of whom may not have training in health care, particularly geriatric health care) are unaware that some of these medications are not suitable for older people, and can have serious side effects.

The use of these medications is a health care intervention; as such it comes under the Health Care (Consent) and Care Facility (Admission) Act consent requirements. However the use of the medication also potentially becomes a form of chemical restraint,(36) also bringing it under the Residential Care Regulations rules on restraints. (37) Depending on the circumstances, the misuse of restraints may also fall under the Adult Guardianship Act abuse definition. (38)

The safeguards, such as consent, for chemical or other restraints are not covered by the laws governing some facilities. As the Ombudsperson Report has noted “There are no legislated requirements in the Hospital Act that limit the use of restraints in private hospitals or extended care facilities”. (39)

Recent best practice guidelines for dementia care from the Ministry of Health have been beneficial in raising awareness of the responsibility of health care providers to seek consent for use of the medication or other intervention before treatment. (40) The guidelines stress:

“With few exceptions it is paramount that the resident’s closest family or friend (of whom one of is likely the resident’s authorized substitute decision maker) should be included in the consent seeking process." (41)

Information Rights

An adult has the right to relevant information given in an appropriate manner to be able to make an informed decision. The information rights necessary for authorized substitute decision maker to exercise informed content about restraints on behalf of an incapable resident’s are similar to a resident’s information rights. The guidelines note:

“[t]he capable resident/family, or the incapable resident’s authorized substitute decision maker, should be informed of the benefits and risks of the recommended treatment, the clinical implications of refusing treatment, and be given the opportunity to ask questions of the health care provider (and have them answered) before providing a decision. Any potential adverse effects from the use of antipsychotics, such as the increased risk of stroke or death, should also be discussed when antipsychotic medications are considered medically appropriate.” (42)

However, even these guidelines seem to be based on the assumption that the main goal is to “get the consent”, as opposed to informing the decisionmaker and exploring alternatives. The best practice guidelines are accompanied by a “decisionmaking algorithm to support person-centred care for persons with behavioural and psychological symptoms of dementia”. Basically this is a process to help guide the practitioner to make decisions.

Consent is recognized as a component of that resident/ patient decision-making, but again it is specifically described in the context of medications. It is important to recognize that health care consent is required for any health care intervention.

Exploiting Consent Loopholes?

When the person falls under the Mental Health Act is one of the few exceptions for when consent is required. (43)This provision is one of the ways in which health care consent requirements are sometimes circumvented in care facilities. In a 2011 review of antipsychotic drugs use in British Columbia’s residential care facilities, health care providers confirmed if the authorized decision-maker refuses medication or other appropriate treatment that the health care provider has proposed to manage behaviour and feels is appropriate.

“… then the practice is to send the resident to a hospital that is designated under the Mental Health Act. In these designated settings, the patient may be certified under the Mental Health Act, and involuntary treatment, including medication, may be provided without the consent of the patient or their authorized decision maker.” (44)

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