Types of Substitute Decision-Making in Residential Care

1. Statutory Substitutes - Temporary Substitute Decision-Making for Health Decisions

a. The Basics

British Columbia has a system for appointing temporary substitute decision makers for health care decisions. Unlike some jurisdictions, British Columbia does not have a statutory process that would identify a substitute to make personal care decisions on behalf of a mentally incapable adult.

An adult may become incapable of consenting to a minor or major health care decision and may not have made her or his own arrangements to appoint someone (e.g. through a representation agreement). Typically no committee of the person has been appointed either. In these circumstances, a health care provider can select a Temporary Substitute Decision Maker (TSDM) to make health decisions on behalf of the individual. The selection is based on the hierarchy set out by the statutory list under the Health Care Consent and Care Facility (Admission) Act.

To qualify as a TSDM who can give, refuse or revoke substitute consent to health care for an adult, a person must:

(a) Be at least 19 years of age,

(b) Have been in contact with the adult during the preceding 12 months,

(c) Have no dispute with the adult,

(d) Be capable of giving, refusing or revoking substitute consent, and

(e) Be willing to comply with the duties.

From the listed order below, the health care provider must choose the first person who is available and qualifies:

(a) The adult's spouse;

(b) The adult's child;

(c) The adult's parent;

(d) The adult's brother or sister;

(d.1) the adult's grandparent;

(d.2) the adult's grandchild;

(e) Anyone else related by birth or adoption to the adult;

(f) A close friend of the adult;

(g) A person immediately related to the adult by marriage.

A health care provider is not required to do more than make the effort that is reasonable in the circumstances to comply with this section.

If there is no one listed who is available or qualifies, or if there is a dispute about who is to be chosen as a temporary substitute decision-maker, the health care provider must “choose” a person authorized by the Public Guardian and Trustee.

The authority of a Temporary Substitute Decision-Maker

A person chosen as a TSDM has the authority to decide whether to give or refuse substitute consent to health care. The TSDM is limited by the ‘temporary’ nature of their authority. A TSDM is only selected when the health care provider determines the adult is incapable and a decision needs to be made. A TSDM’s authority only lasts for that specific decision or set of decisions.

The authority of the TSDM applies to the particular health care decision at hand. While TSDMs can consent to a “plan for minor health care “(see below), they cannot give “blanket consent” for future health care. In part, this is because health care consent requires “informed consent”; the TSDM or any other substitute would not have the information on the person’s future condition and available options at that point of decision-making. Consent to a plan for minor health care by a TSDM “expires” or needs to be revisited after one year.

Definition of Health Care (Health Care Consent)

"Health care" means anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other purpose related to health, and includes:

(a) a series or sequence of similar treatments or care administered to an adult over a period of time for a particular health problem,

(b) a plan for minor health care that

(i) is developed by one or more health care providers,

(ii) 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, and

(iii) expires no later than 12 months from the date consent for the plan was given, and

(c) participation in a medical research program approved by an ethics committee designated by regulation.

Duties of a temporary substitute decision-maker

The TSDM does not make decisions in a vacuum. Before giving or refusing substitute consent, the TSDM must consult with the adult to the greatest extent possible, even if the person is considered “mentally incapable”. This can help determine the person’s current wishes as well as revisit the person’s values, wishes and beliefs. The TSDM must comply with any instructions or wishes the adult expressed while she or he was capable. TSDMs who have been authorized by the Public Guardian and Trustee must also consult with any near relative or close friend of the adult who asks to assist.

If the adult's instructions or wishes are not known, the TSDM must decide to give or refuse consent in the adult's “best interests”. This means the TSDM must consider:

• the adult’s current wishes, known beliefs and values;
• whether the adult’s condition or well-being is likely to be improved by receiving the proposed health care, or by not receiving it
• whether the expected benefit to the adult is greater than the risk of harm; and
• whether a less restrictive or less intrusive form of health care would be as beneficial as the proposed health care.

A TSDM has the authority to refuse substitute consent to health care that would otherwise be necessary to preserve life. However, this can only occur if there is substantial agreement among the health care providers caring for the adult that (a) the decision to refuse substitute consent is medically appropriate, and (b) the person has made the decision in light of adult’s known instructions and wishes expressed while he or she was capable (or if this is unknown, based on the adult’s best interests).

The TSDM has a right to request information

In order to give an informed health care decision including a plan of care, the person chosen as a TSDM has the right to all information and documents to which the adult is entitled and that are necessary for the person to make the decision.

Duty to disclose information

Health care providers or anyone else, such as administration, have an active duty to disclose any information or document that the TSDM would need to make the informed health care decision (including for a plan of care), even if those documents or information would otherwise be considered privileged and confidential.

End of responsibility

The TSDM’s authority ceases if the adult becomes capable, or if the person no longer qualifies as the TSDM. If the TSDM wants to be relieved of the authority to give or refuse substitute consent, the health care provider may choose another person in accordance with the statutory list to assume that authority.

Protection from liability

A health care provider or the operator of a care facility is entitled to rely on the accuracy of the information given to them to establish (a) someone's eligibility to be chosen as TSDM ( “I am John’s son and we get along fine”) or (b) someone's authority to give, refuse or revoke consent to health care, unless it is not reasonable to rely on that information.

Restrictions on authority of a TSDM

There certain types of health care decisions that a TSDM would not have the authority to make for older adults in hospital or residential care. These are set out in the Health Care Consent Regulation, and include:

• Electroconvulsive therapy (unless it has been recommended in writing by the adult’s treating physician and at least one other medical practitioner who has examined the adult);
• Any experimental health care that involves “a foreseeable risk to the adult that is not outweighed by the expected therapeutic benefit”;
• Psychosurgery;
• Removing tissue while alive to be implanted in another person (e.g. donating a kidney) or for medical education;
• Participating in a health care or medical research program that has not been approved by any of the research ethics committees listed in the regulations;
• Any treatment, procedure, or therapy that uses negative stimuli to produce a change in behaviour (i.e. exposing the person to pain, fear, sound, heat, light so they will not behave in a certain manner).

The term "experimental health care" as it is used here refers to any health care that deviates from standard professional practice, and has not been approved by a research ethics committee recognized by the regulations.

A person also cannot give or refuse consent for these types of health care in an Advance Directive (described below). They may be included in a customized Section 9 Representation Agreement.

Collection of personal information

Health care providers are authorized to collect personal information about an adult from any person if this is necessary for the health care providers to carry out their duties or functions under the Health Care Consent and Care Facility (Admission) Act. That may include for example, needed information about who might be the potential TSDMs.

b. Common Legal Issues around TSDMs

There are several legal issues that arise in residential care facilities related to substitute decision-makers for health, personal care or finances. Some of these, such as when the substitutes make decisions based on their own wishes or interests not the older adult’s, are described later in the chapter. The TSDM system for health care decisions, however, encounters two special legal problems in residential care.

Choosing a TSDM

There is a common misunderstanding that a TSDM can be chosen based on an adult’s known wish without any legal documentation of this choice (i.e., representation agreement).

“Jumping the queue”

As previously noted, a health care provider is not required to do more than make the effort that is reasonable in the circumstances when selecting an available, qualified person as a TSDM. One issue that arises in the residential care setting from time to time is when a health care provider decides to “jump” certain people on the TSDM list or give priority to an equally or lower situated (but favoured) person. This may occur when the health care provider in residential care considers some persons in a family as easier to contact, easier to deal with, or more likely to agree with the course of action being presented (e.g., use of psychoactive medication).

“Have no dispute”

The law requires that to qualify as a TSDM, the potential candidate must have been in contact with the adult during the preceding 12 months, and “have no dispute with the adult”. People may interpret this as meaning there has been no overt conflict, as opposed to the more common fundamental differences over values and approaches to personal health decisions. It is very difficult for health care provider to know the life history within families, the nature of relationships, and whether the potential TSDM has substantially different values than the person for whom she or he would be making decisions.

Unlike some family disputes over money, health care differences tend to be less obvious to others. Significant differences in perspective may not surface until the person becomes physically, mentally or socially vulnerable, or when a health crisis develops. The situation is further complicated by the fact that the expressed wishes are open to interpretation or the person may have expressed different wishes to different people at different points in time. An ethics committee, where available, may help families and others sort out some of these matters.

Some health care providers working in residential care may acquiesce to a strong minded person becoming the older adult’s TSDM, even where other family members feel the person is imposing his or her wishes on the health care decisions to be made. These types of situations should be referred by the health care provider to the Health Care Decisions Consultant with the Public Guardian and Trustee Office for resolution.

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

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