Adults and Consent to Health Care (Script 428)

From Clicklaw Wikibooks

Do you have the right to refuse healthcare? What law 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.

This Act applies to adults—people 19 and over—but not to children. It also applies to the healthcare (but not the psychiatric care) of people 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 healthcare, check script 422, called “Children and Consent to Healthcare”.

A doctor or healthcare provider can treat you only if you give valid consent

For your consent to be valid, you must be informed. That means your doctor or healthcare 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 healthcare in writing or verbally. And if a person can’t give written or verbal consent, a doctor or healthcare provider may be able to decide—based on the person’s conduct—that the person consents to healthcare.

Do you have the right to refuse healthcare?

Yes. Every capable adult has the right to consent to healthcare 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 healthcare, such as a blood transfusion, even if it means you will die.

To refuse treatment, you must be mentally capable of making that decision. 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 have a capacity assessment performed by a medical expert.

What if you’re incapable and cannot consent?

Consent to healthcare 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 healthcare decisions, healthcare providers may not need consent to treat you. Because they are dealing with a medical emergency, they may do whatever is necessary to try to save your life or prevent serious physical or mental harm.

But healthcare providers must not provide healthcare to you if you become incapable and they have reasonable grounds to believe that you previously indicated that you wanted to refuse healthcare in a particular situation—even a medical emergency. For example, if you carry a card saying you refuse to have a blood transfusion, and the healthcare provider sees that card, they must respect your wishes.

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

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

a) a person who provides personal care, healthcare or financial services to the adult for compensation, other than a lawyer or notary.
b) a spouse, child, parent, employee, or agent of a person described in paragraph (a).
c) a person who is not an adult.
d) 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:

a) a witness to the signing of the advance directive.
b) 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 when they were capable. So it may still be a guide for the person who must make the healthcare decision.

If a healthcare provider knows there is an advance directive that applies to the proposed healthcare and there is no committee (script 426) or representative (script 180) with authority to make decisions for the adult, the healthcare provider must follow the advance directive for the proposed healthcare.

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

  • if the healthcare provider believes that the directive does not cover the healthcare decision to be made, or if it is too vague to tell if the adult has given or refused consent to the healthcare.
  • if, after the advance directive was made, the adult’s wishes, values, or beliefs in relation to the healthcare 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 healthcare.

‘’‘Temporary substitute decision-makers’‘’—in some cases, another person can make medical decisions for you if you’re too ill or otherwise unable to decide. 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. Script 426, called “Committeeship” has more on this.

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

How is a decision-maker chosen?

Your healthcare provider, in choosing a decision-maker, must ask people in the following order (from the Act):

  1. your spouse or partner (including a same-sex 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
  10. the Public Guardian and Trustee*

A decision-maker must be at least 19 years old, be mentally capable, and have no dispute with you. They must also have been in contact with you in the past 12 months.

  • If no one on this list is available or qualifies to be a decision-maker, or if there’s a dispute about who the decision-maker should be, the healthcare provider must choose the Public Guardian and Trustee (or a person it chooses) to be the decision-maker.

What kind of decisions can a decision-maker make?

A decision-maker can make decisions about any kind of healthcare, except controversial or irreversible treatments such as organ transplants and experimental surgery. Section 5 of the Health Care Consent Regulation says a decision-maker cannot consent to those types of healthcare.

Section 18(2) of the Act allows a decision-maker 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 decision if it is medically inappropriate and there’s no evidence that the decision reflects your wishes and is in your best interests.

What are the duties of a decision-maker?

A decision-maker must consult with you if possible. If that’s not possible, they must follow 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 your wishes are unknown, a decision-maker must give or refuse consent in your best interests, considering whether:

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

What if someone disagrees with a decision-maker?

If a friend, family member, or doctor is concerned about any major healthcare decision by a decision-maker, they can ask the health authority to review the decision. Each health authority is supposed to have a dispute resolution process.

Applying to court in certain cases

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

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

The court can:

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

More information

To learn more about consenting to—and refusing—healthcare, 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 June 2018]

The above was last edited by John Blois.

© Copyright 2018, Canadian Bar Association British Columbia Branch. Dial-A-Law is a registered trademark owned by Canadian Bar Association British Columbia Branch, a non-profit membership corporation.

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