Adults and Consent to Medical Care (Script 428)

Do you have the right to refuse medical care? Who and what 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 (available at www.bclaws.ca). This law was amended on September 1, 2011.

The Act applies to adults – people 19 and over – but not to children. And it doesn’t apply to patients 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 medical care, check script 422, called “Children and Consent to Medical Care”.

A doctor or health care provider can treat you only if you consent

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

Do you have the right to refuse medical care?

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

To refuse treatment, you must be capable. 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 undergo a competency assessment by a medical expert.

What if you’re incapable and cannot consent?

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

But health care providers must not provide health care to you if you become incapable and they have reasonable grounds to believe that you previously indicated that you wanted to refuse health care in a particular case – even a medical emergency. For example, you may carry a card saying you refuse to have a blood transfusion.

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

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

1. a person who provides personal care, health care or financial services to the adult for compensation, other than a lawyer or notary.
2. a spouse, child, parent, employee or agent of a person described in paragraph (a).

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:

1. a witness to the signing of the advance directive.
2. 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 made when they were capable. So it may still guide the person who has to make the decision.

If a health care provider knows there is an advance directive that applies to the proposed health care and there is no personal guardian or representative who has authority to make decisions for the adult, the health care provider must follow the advance directive for the proposed health care.

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

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

In some cases, another person, such as a family member or friend, can make medical decisions for you if you’re too ill or unable. 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 – check script 426, called “Committeeship”.

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

How is a temporary substitute decision-maker (TSDM) chosen?

Your health care provider, in choosing a TSDM, must ask people in the following order (from the Act):

1. your spouse or partner (including a gay or lesbian 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

The TSDM must be at least 19 years old, must get along with you, and must have been in contact with you in the past 12 months.

What kind of decisions can the temporary substitute decision-maker (TSDM) make?

The TSDM must consult with you if possible. If that’s not possible, the TSDM can rely on what they know or reasonably believe you would have wanted when you were capable. Then they must follow your wishes and beliefs to make health care decisions in your best interest. You should let your family know now what decisions you would like if you can no longer decide for yourself.

The TSDM can make decisions about any kind of health care, except controversial or irreversible treatments such as organ transplants and experimental surgery. Section 5 of the Health Care Consent Regulation (available at www.bclaws.ca) says a TSDM cannot consent to those types of health care.

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

What if someone disagrees with a health-care decision of the TSDM?

If a friend, family member, or doctor is concerned about any major health care decision the TSDM makes, they can ask the health authority to review the decision. Each health authority is supposed to have its own dispute resolution process.

Applying to court

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

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

The court can:

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

More information

To learn more about consenting to – and refusing – medical care, 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 at www.trustee.bc.ca and the Ministry of Health website at www.gov.bc.ca/health.

[updated February 2014]

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

In family law, this usually refers to one party obtaining a part of any property at issue before the property has been finally divided by court order or the parties' agreement, usually in order to help pay for that person's legal fees.

A person with direct, personal knowledge of facts and events relevant to the issues before the court; a person giving oral evidence in court on oath or affirmation as to the truth of the evidence given. See "affirm," "evidence," "oath" and "opinion evidence."

A person licensed to practice law in a particular jurisdiction by that jurisdiction's law society. See "barrister and solicitor."

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 law, someone acting on behalf of someone else, with that person's express permission and normally at their express direction.

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."

In contract law, a promise made by someone about a certain state of affairs, like "the plumbing was replaced last year" or "I had a vasectomy two years ago." See "misrepresentation."

A person who is younger than the legal age of majority, 19 in British Columbia. Not to be confused with "miner," which means something else altogether. See "age of majority."

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."

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."

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, the re-examination of a term of an order or agreement, usually to determine whether the term remains fair and appropriate in light of the circumstances prevailing at the time of the review. In family law, particularly the review of an order or agreement provided for the payment of spousal support. See "de novo," "family law agreements," "order" and "spousal support."

Processes used to resolve legal disputes, including negotiation, collaborative settlement processes, mediation, arbitration and litigation.

(1) A person charged with the legal care of someone under a legal disability. (2) A term under the Family Law Act referring to a person, including a parent, who is responsible for the care and upbringing of a child through the exercise of parental responsibilities. See "disability," "parental responsibilities" and "parenting time."