Consent to health care decisions
As mentioned in a previous blog, in general any interference with a person’s body without that person’s consent constitutes the tort of battery. Under the law in British Columbia, a health care provider is not permitted to provide any health care to an adult without the adult’s consent (consent is defined to be a voluntary, informed decision about the specific proposed health care), except under limited circumstances. An adult has the right to give or refuse consent to health care for any reason, including moral or religious grounds, even if the refusal will result in the adult’s death.
Consent may be given orally or in writing, or it may be inferred from the adult’s conduct. But what if the adult is not able to give consent? The Health Care (Consent) and Care Facility (Admission) Act (the “Act”) outlines the procedure for obtaining consent in order for an adult to receive health care treatment.
The health care provider must make every reasonable effort to obtain consent from the adult before seeking consent from other sources. To obtain consent, the health care provider must explain the proposed treatment, including:
- the medical condition to be treated;
- the nature and the risks and benefits of the treatment;
- alternative types of treatment; and
- the likely consequences of receiving no treatment.
The adult or substitute decision maker must have the opportunity to ask questions and receive answers about the proposed treatment.
For most types of health care, the health care provider must attempt to obtain consent or substitute consent or refusal in the following order of priority:
- from the adult;
- from the adult’s court-appointed committee;
- from the adult’s representative appointed under a representation agreement;
- from the adult’s advance directive, if the advance directive specifically addresses the proposed treatment;
- from the temporary substitute decision maker (“TSDM”) in the following order of priority:
- other relative related by birth or adoption;
- close friend;
- a person immediately related to the adult by marriage.
The TSDM must be at least 19 years of age, have been in contact with the adult during the past 12 months, and have no dispute with the adult;
- from an individual authorized by the Public Guardian and Trustee.
Temporary substitute decision makers
Choosing a TSDM:
A health care provider is only required to make an effort that is reasonable in the circumstances to obtain substitute consent from a TSDM, considering the urgency of the situation and available time and resources. The TSDM must be available, qualified to act as a TSDM and willing to make the decision.
A TSDM is chosen whenever consent is required, which is for each particular health care decision or course of treatment. In other words, a TSDM makes decisions on an ad hoc basis and a different TSDM may be selected for different decisions, depending on the TSDM’s availability and willingness to act.
Limited scope of authority:
A TSDM may refuse substitute consent to health care necessary to preserve the adult’s life only if there is substantial agreement among the health care providers that the decision is medically appropriate, and the TSDM has consulted with the adult to the greatest extent possible, complies with any wishes the adult expressed while capable and acts in the adult’s best interests.
A TSDM cannot give or refuse substitute consent to certain types of health care that are of a more serious nature, including:
- abortion (unless recommended by at least two medical practitioners);
- electroconvulsive therapy (unless recommended by at least two medical practitioners);
- psychosurgery; and
- experimental health care involving significant risk to the adult.
A TSDM’s authority does not include decisions with respect to the adult’s personal care; for example, the adult’s living arrangements, diet, dress and participation in social or recreational activities.
If an adult does not want the individuals in the order of priority designated by the Act to give or refuse consent on the adult’s behalf (the individuals might not share the adult’s views on health care or there might be conflict among the individuals), wants a decision maker to have broader authority to make health care decisions, or wants a decision maker for personal care, the adult should appoint a representative and set out the representative’s scope of authority in a representation agreement. Such planning enables an adult to choose a trusted friend or family member and make obtaining substitute consent an easier process.