Adults and Consent to Health Care

Do you have the right to refuse health care? Who and what allows doctors to treat you if you’re unconscious or unable to indicate what medical treatment you want? The answers to these and other questions are in a BC law called the Health Care (Consent) and Care Facility (Admission) Act.

The Act applies to adults – people 19 and over – but not to children. And it doesn’t apply to patients who are involuntarily admitted to hospital for psychiatric treatment under the Mental Health Act. For information on consenting to and refusing psychiatric treatment as an involuntary patient, check script 425, called “Hospitalizing a Mentally Ill Person”. For the law on children and consent to health care, check script 422, called “Children and Consent to Health Care”.

A doctor or health care provider can treat you only if you consent

For your consent to be valid, it must be informed. That means your doctor or health care provider must explain your illness or condition to you and tell you about the proposed treatment, the risks and benefits of it, and any alternative treatments, including no treatment.

The law says, “Consent to health care may be expressed orally or in writing or may be inferred from conduct”. This means that people can consent to health care in writing or verbally. And if a person can’t give written or verbal consent, a doctor or health care provider may be able to decide – based on the person’s conduct – that the person consents to health care.

Do you have the right to refuse health care?

Yes. Every capable adult has the right to consent to health care or refuse it – for any reason, including moral and religious reasons. Adults also have the right to change their decisions about medical treatment. You can refuse life support or other health care, such as a blood transfusion, even if it means you will die.

To refuse treatment, you must be capable. The law presumes all adults are capable of giving, refusing, or revoking their consent, unless it’s clear they are not capable of making those decisions. If a doctor questions a person’s mental capability, the doctor can require the person to undergo a competency assessment by a medical expert.

What if you’re incapable and cannot consent?

Consent to health care in a medical emergency may not be needed to treat you if you’re an adult – it depends on the situation. If your life or health is seriously threatened, and it appears that you are not capable of making health care decisions, health care providers may not need consent to treat you. Because they are dealing with a medical emergency, they may be able do whatever is necessary to try to save your life or prevent serious physical or mental harm.

But health care providers must not provide health care to you if you become incapable and they have reasonable grounds to believe that you previously indicated that you wanted to refuse health care in a particular case – even a medical emergency. For example, you may carry a card saying you refuse to have a blood transfusion.

Advance directives—what are they and how do they work?

If you previously indicated what you want in a medical emergency, health care providers must follow your wishes if the emergency occurs. For example, you may have made an advance directive. That is a written instruction by a capable adult that gives or refuses consent to health care (described in the advance directive) if the adult is not capable of giving the instruction when the health care is needed.

Signing requirements—an advance directive must be signed and dated by the adult in front of 2 witnesses. The directive must also be signed and dated by the 2 witnesses in front of the adult (only one witness is needed if the person is a notary or lawyer). The witnesses must be capable adults who understand the type of communication the adult uses. They can use an interpreter if necessary.

Who cannot be a witness—the following people cannot be a witness:

1. a person who provides personal care, health care or financial services to the adult for compensation, other than a lawyer or notary.
2. a spouse, child, parent, employee or agent of a person described in paragraph (1).
3. a person who is not an adult.
4. a person who does not understand the type of communication used by the adult.

Signing for an adult who is not physically capable—if an adult is not physically capable of signing an advance directive, another person can sign it for them if the adult is physically present and directs the person to sign the directive. Their signature must be witnessed as if the adult were signing the directive. The following people must not sign an advance directive for an adult:

1. a witness to the signing of the advance directive.
2. a person prohibited from acting as a witness (described in the preceding paragraph).

Even if an advance directive is not properly witnessed, it may still show an adult’s wishes made when they were capable. So it may still guide the person who has to make the decision.

If a health care provider knows there is an advance directive that applies to the proposed health care and there is no personal guardian or representative who has authority to make decisions for the adult, the health care provider must follow the advance directive for the proposed health care.

But an advance directive does not apply in any of the following cases:

• if the health care provider believes that the directive does not cover the health care decision to be made, or if it is too vague to tell if the adult has given or refused consent to the health care.
• if, after the advance directive was made, the adult’s wishes, values, or beliefs in relation to the health care decision have changed and the advance directive does not reflect the change.
• if, after the advance directive was made, significant changes in medical knowledge, practice, or technology have been made that might substantially benefit the adult in relation to health care.

Substitute decision-makers—in some cases, another person can make medical decisions for you if you’re too ill or unable. If you’ve made a representation agreement allowing your representative to make all major and minor health decisions for you, your representative can make the medical decision. Script 180, called “Power of Attorney and Representation Agreements” has more on this. If you’re mentally incapable, a person appointed by the court as a committee (pronounced comm-it-tay) of the person can make medical decisions for you – check script 426, called “Committeeship”.

But if you have no representative or committee of the person, your health care provider must choose a temporary substitute decision-maker, or TSDM, based on what the Act requires, as the next section explains.

How is a temporary substitute decision-maker (TSDM) chosen?

Your health care provider, in choosing a TSDM, must ask people in the following order (from the Act):

1. your spouse or partner (including a gay or lesbian partner)
2. an adult child
3. a parent
4. a brother or sister
5. a grandparent
6. a grandchild
7. anybody else related by birth or adoption
8. a close friend
9. a person immediately related by marriage

The TSDM must be at least 19 years old, be capable, and have no dispute with you. They must also have been in contact with you in the past 12 months.

What kind of decisions can the temporary substitute decision-maker (TSDM) make?

The TSDM can make decisions about any kind of health care, except controversial or irreversible treatments such as organ transplants and experimental surgery. Section 5 of the Health Care Consent Regulation says a TSDM cannot consent to those types of health care.

Section 18(2) of the Act allows the TSDM to say no to life-saving treatment if you’re terminally ill or critically injured and your doctor will follow their decision. But the doctor may challenge the TSDM if their decision is medically inappropriate and there’s no evidence that their decision reflects your wishes and is in your best interests.

What are the duties of a TSDM?

The TSDM must consult with you if possible. If that’s not possible, the TSDM must comply with any directions you gave while you were capable. You should let your family know now what decisions you would like if you can no longer decide for yourself. If you wishes are unknown, the TSDM must give or refuse consent in your best interests, considering whether:

• your condition will improve with the proposed health care.
• the condition will improve without the health care.
• the benefit of the health care is greater than the risk of harm.
• less restrictive or less intrusive health care would be as helpful as the proposed health care.

What if someone disagrees with a health-care decision of the TSDM?

If a friend, family member, or doctor is concerned about any major health care decision the TSDM makes, they can ask the health authority to review the decision. Each health authority is supposed to have its own dispute resolution process.

Applying to court

Under Section 33(4) of the Act, the following people can apply to court for an order on certain things:

• a health care provider caring for an adult incapable of giving or refusing consent to health care.
• an adult's representative or personal guardian.
• a TSDM.
• an adult assessed as incapable of giving or refusing consent to health care or admission to a care facility.

The court can:

1. give direction on an advance directive, or any other health care instruction or wish.
2. say who the substitute decision maker should be.
3. confirm, reverse, or change a decision of a representative, guardian, or TSDM.
4. order the adult to have an assessment of incapability.
5. make any decision that a person chosen to provide substitute consent under the Act could make.

More information

To learn more about consenting to – and refusing – health care, call the Public Guardian and Trustee of BC at 604.775.1007 in Vancouver, 604.775.1001 in the lower mainland, and 1.877.511.4111 elsewhere in BC (the call is free). Also, check the Public Guardian and Trustee website and the Ministry of Health website.

[updated March 2016]

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