Difference between revisions of "Representation Agreements (15:V)"

Where there is no Representative previously appointed and an adult no longer has capacity, various provincial laws apply. The statutory framework allows for the appointment of a temporary substitute decision-maker (HCCFA). Designated Agencies must investigate allegations of abuse or neglect and provide necessary support and assistance [AGA]. The statutory framework grants investigatory and decision-making power to the Public Guardian and Trustee (PGTA). Below is an outline of the legal parameters for each of these processes.   

*Consent to health care may be expressed orally or in writing or be inferred from conduct (s 9(1) HCCFA). Where a patient is incapable (i.e. due to illness, loss of consciousness or injury), health care providers are required to get consent from a substitute decision-maker. However, there is an exception when urgent or emergency health care is required (s 12HCCFA).

*If the patient has a Representation Agreement (RA) in place, then the instructions for consent will need to be obtained from the Representative (see s 19.3 HCCFA).   

*If the patient has an Advance Directive (AD) in place, then consent may be given in the AD (s 19.7 HCCFA).

*If no Representative and no Committee are in place, then the health care provider will need to find a temporary, substitute decision-maker (TSDM) to give or refuse consent (s 19.8 HCCFA).

The HCCFA outlines the specific procedures that health care providers must follow to obtain legally valid consent. Section 16 of the HCCFA sets out the “default list,” which health care providers must follow (in hierarchical order) to determine the appropriate person to act as a TSDM.   

The default list provided in s 16 of the HCCFA is as follows:  

To obtain substitute consent to provide major or minor health care to an adult, a health care provider must choose the first, in listed order, of the following who is available and qualifies under subsection (2) (subsection 1):  

*the adult's spouse or partner;

*the adult's child who is over 19;  

*the adult's parent;  

*the adult's brother or sister;  

*the adult’s grandparent;  

*the adult’s grandchild;  

*other relatives by birth or adoption (but not in-laws or step-children);  

*close friend;  

*persons immediately related by marriage (including in-laws and step-children).  

To qualify to give, refuse or revoke substitute consent to health care for an adult, a person must (subsection 2):  

*be at least 19 years of age;  

*have been in contact with the adult during the preceding 12 months;  

*have no disputes with the adult;  

*be capable of giving, refusing or revoking substitute consent, and  

The TSDM must act in accordance with the adult patient’s wishes, values and beliefs, when the patient is unable to provide their own consent, and does not have an appointed Committee or a Representative.