Decision-Making Rights in Home Care and Senior Housing

Decision-Making Rights

Informed Consent

Informed consent is informed, timely voluntary agreement by a person who has capacity to make that decision.(1)

Everyone has the right to make decisions about their own affairs. Under BC law, adults are considered capable unless they have been assessed as incapable of making health care and care facility admission decisions. This is true even where family members or caregivers disagree with a person’s decisions.(2)

A basic principle governing admission to care facilities, as well as health care decisions in general, is informed consent. This means that when an adult is deciding whether to enter a long-term care home, they must do so freely and voluntarily, based on full information about the decision to be made. If the adult has been assessed as incapable, then a designated decision-maker must decide on their behalf while following specific guiding principles.(3)

The requirements for informed consent are set out in the Health Care (Consent) and Care Facility (Admission) Act. When a person is being admitted to a long-term care facility, consent must be:

• given voluntarily;
• not be obtained by fraud or misrepresentation, such as dishonesty or manipulation;
• given by an adult who is capable of making the decision; and
• based on sufficient information to make an informed decision.(4)

Sufficient information is defined as what a reasonable person would need to know to understand that they will be admitted to a care facility. It includes information about what care they will receive in the facility, the services that will be available to them, and the circumstances under which they may leave the care facility. They must also have an opportunity to ask questions and receive answers about admission.(5)

When seeking consent from an adult, a facility operator must communicate with the adult in a way that fits the adult’s skills and ability. They must give the adult the option of having a family member or friend present to help them understand the information being shared.(6)

An adult may give consent orally, in writing, or by conduct that implies consent (such as nodding, cooperating with admission, etc.). The consent must be given to the operator of the care facility and be documented in writing.(7)

Capacity

If there is evidence that an adult may not be capable of making an informed decision about admission to a care facility, they should be assessed to determine capacity. If they are found to be incapable of making that particular decision, then someone else must make the admission decision on their behalf.(8)

Note that capacity is not a blanket determination. Capacity depends on present circumstances and may vary at different times or in different contexts. For example, an adult may be capable of making certain personal care decisions but require assistance making health care decisions. Or they may be able to manage day-to-day spending, but need help managing major financial obligations. Capacity may fluctuate from day to day or at different times of the day.

When someone is responsible for making an admission decision on another adult’s behalf, their role may range from providing information and support to help the adult decide for themselves, to considering the adult’s wishes and best interests and making the decision on the adult’s behalf.

Substitute Decision-Makers

When an adult is assessed as incapable of making an admission decision themselves, the decision must be made by a substitute decision-maker. The legislation sets out who can be a substitute decision-maker. The order of priority is as follows:

1. The adult’s personal committee or representative, if they have the authority to make a decision regarding long-term care admission
2. The adult’s spouse
3. The adult’s child
4. The adult’s parent
5. The adult’s sibling
6. The adult’s grandparent
7. The adult’s grandchild
8. Anyone else related by birth or adoption to the adult
9. A close friend of the adult
10. A person immediately related to the adult by marriage, such as a sibling-in-law(9)

In addition, a substitute decision-maker must also:

• 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;
• be capable of giving or refusing substitute consent; and
• be willing to comply with the substitute decision-maker duties.(10)

If there is no individual available from the list of potential substitute decision-makers who meets these qualifications, the facility should contact the Public Guardian and Trustee who will appoint someone to make the decision for the adult.(11)

Duties of a Substitute Decision-Maker

Before making an admission decision on behalf of an adult, a substitute decision-maker must:

• make reasonable efforts to consult with the adult and any spouse, friend, or relative of the adult who asks to assist;
• consider the adult’s best interest, in light of the adult’s current and pre-expressed wishes, values, and beliefs; and
• decide based on the adult’s best interest, considering:
  • the adult’s current and pre-expressed wishes;
  • their values and beliefs;
  • whether the adult could benefit from admission to the facility; and
  • whether a different course of action or a less restrictive type of care is available and appropriate in the circumstances.(12)

Exceptions to Informed Consent

It is possible to admit an adult into a long-term care facility without their consent if any of the following emergency circumstances apply:

• admission is necessary to preserve the adult’s life;
• admission is necessary to prevent serious physical or mental harm to the adult;
• admission is necessary to prevent serious physical harm to any other person; or
• the adult is subject to an emergency measure taken under section 59 of the Adult Guardianship Act, which includes situations where the adult is being abused, neglected or is self-neglecting.(13)

This emergency admission is valid for 72 hours, after which the facility must obtain consent from the adult or a substitute decision-maker as described above.(14)

References

1. Health Care (Consent) and Care Facility (Admission) Act, RSBC 1996, c 181, s 6, online: <https://canlii.ca/t/842m>.
2. Health Care (Consent) and Care Facility (Admission) Act, RSBC 1996, c 181, s 3-4, online: <https://canlii.ca/t/842m>.
3. Health Care (Consent) and Care Facility (Admission) Act, RSBC 1996, c 181, ss 20-22, online: <https://canlii.ca/t/842m>.
4. Health Care (Consent) and Care Facility (Admission) Act, RSBC 1996, c 181, s 21, online: <https://canlii.ca/t/842m>.
5. Health Care (Consent) and Care Facility (Admission) Act, RSBC 1996, c 181, s 21(1), (2), online: <https://canlii.ca/t/842m>.
6. Health Care (Consent) and Care Facility (Admission) Act, RSBC 1996, c 181, s 21(3), online: <https://canlii.ca/t/842m>.
7. Health Care (Consent) and Care Facility (Admission) Act, RSBC 1996, c 181, s 21(2), online: <https://canlii.ca/t/842m>.
8. Health Care (Consent) and Care Facility (Admission) Act, RSBC 1996, c 181, ss 20-22, online: <https://canlii.ca/t/842m>.
9. Health Care (Consent) and Care Facility (Admission) Act, RSBC 1996, c 181, s 22(2), online: <https://canlii.ca/t/842m>.
10. Health Care (Consent) and Care Facility (Admission) Act, RSBC 1996, c 181, s 22(4), online: <https://canlii.ca/t/842m>.
11. Health Care (Consent) and Care Facility (Admission) Act, RSBC 1996, c 181, s 22(5), online: <https://canlii.ca/t/842m>.
12. Health Care (Consent) and Care Facility (Admission) Act, RSBC 1996, c 181, s 23, online: <https://canlii.ca/t/842m>.
13. Health Care (Consent) and Care Facility (Admission) Act, RSBC 1996, c 181, s 24(1), online: <https://canlii.ca/t/842m>.
14. Health Care (Consent) and Care Facility (Admission) Act, RSBC 1996, c 181, s 24, online: <https://canlii.ca/t/842m>.

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Seniors First BC, February 2024.

(1) Agreement, or (2) the giving of permission for a thing to happen or not happen.

In law, (1) a judge's conclusions after hearing argument and considering the evidence presented at a trial or an application, (2) a judgment, or (3) the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as their findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law" and "findings of fact."

Acts or words tending or intended to give a misleading or false impression as to the true state of affairs. See "bad faith."

Facts, or proof tending to support the existence of facts, presented to a judge at a hearing or trial. Evidence can be given through the oral testimony of witnesses, in writing as business records and other documents, or in the form of physical objects. Evidence must be admissible according to the rules of court and the rules of evidence. See "circumstantial evidence," "hearsay" and "testimony."

In law, an order of a court cancelling or changing an earlier order of the court. See "order."

An act; a statute; a written law made by a government. See "regulations."

A mandatory direction of the court that is binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. Failing to abide by the terms of an order may constitute contempt of court. See "appeal," "consent order," "contempt of court," "decision" and "declaration."

Under the Divorce Act, either of two people who are married to one another, whether of the same or opposite genders. Under the Family Law Act, spouse includes married spouses, unmarried parties who have lived together in a marriage-like relationship for at least two years, and, for all purposes of the act other than the division of property or debt, unmarried parties who have lived together for less than two years and have had a child together. See "marriage" and "marriage-like relationship."

A person who is younger than the legal age of majority, 19 in British Columbia. See "age of majority."

In family law, the natural or adoptive father or mother of a child; may also include stepparents, depending on the circumstances and the applicable legislation; may include the donors of eggs or sperm and surrogate mothers, depending on the circumstances and the terms of any assisted reproduction agreement. See "adoptive parent," "assisted reproduction," "natural parent" and "stepparent."

In family law, the act or process of taking another person's child as one's own. The child becomes the adopting parent's legal child as if the child were the adopting parent's natural child, while the natural parent loses all rights and obligations with respect to the child. See "natural parent."

A legal relationship between two persons, whether of the same or opposite genders, that is solemnized by a marriage commissioner or licenced religious official and gives rise to certain mutual rights, benefits, and obligations. See also "conjugal rights," "consortium," and "marriage, validity of."

Under the Family Law Act, a term that describes the time a person who is not a guardian of a child, including a parent who is not a guardian, has with that child. Under the Divorce Act, a term that describes the time a person who is not a married spouse has with a child. See "guardian" and "parental responsibilities."

A court proceeding in which one party sues another for a specific remedy or relief, also called a "lawsuit" or a "case." An action for divorce, for example, is a court proceeding in which the claimant sues the respondent for the relief of a divorce order.